Court File and Parties

COURT FILE NO.: 8392/21 DATE: 2023-03-29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Karen Pritchard, Counsel for the Crown

- and -

A.H. J. Belisle, Counsel for the Accused Accused

HEARD: April 25, 26, 27, 28, August 4, October 5, 12, November 14, 16, 30, and December 1, 2022

RASAIAH J.

Reasons for Judgment

Overview

[1] The accused, A.H. stands charged with three offences as outlined below.

[2] The accused entered pleas of not guilty to all charges.

[3] A trial was conducted and heard on April 25, 26, 27, 28, August 4, October 5, 12, November 14, 16, 30, and December 1, of 2022.

[4] I confirm that I have considered all the evidence, although I may not refer to every piece.

[5] I have further considered the law and authorities that are relevant, the law and authorities submitted by counsel, and the submissions of counsel, although I may not refer to every one of them.

[6] Jurisdiction is admitted.

Charges

[7] A.H. stands charged that she:

a. between the 1st day of January in the year 2015 and the 31st day of December in the year 2017 at the City of Sault Ste. Marie in the said Region, did make child pornography to wit: child pornographic images of 11-year-old L.H.A. contrary to section 163.1(2) of the Criminal Code;

b. between the 1st day of January in the year 2015 and the 31st day of December in the year 2017 at the City of Sault Ste. Marie in the said Region did have in her possession for the purpose of distribution, child pornography to wit: pornographic materials, contrary to section 163.1(3) of the Criminal Code; and

c. between the 1st day of January in the year 2015 and the 31st day of December in the year 2017 at the City of Sault Ste. Marie in the said Region, by means of telecommunication, communicates with a person or makes an arrangement with a person to commit an offence enumerated under section 172.2(1)(a) contrary to section 172.2(1)(a) of the Criminal Code (“Code”).

Code Provisions

[8] Section 163.1(1) of the Code provides:

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;

(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.

[9] Section 163.1(2) of the Code provides:

Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

[10] Section 163.1(3) of the Code provides:

Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising, or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

[11] Section 172.2(1) of the Code provides:

Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) with respect to another person who is, or who the accused believes is, under the age of 18 years;

[12] Section 4(3) of the Code provides:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Discussion and Analysis

Burden of Proof

[13] The accused started this trial presumed to be innocent of the charges she is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that she committed each offence with which she is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27. The burden never shifts. Reasonable doubt is based on reason and common sense. It is a doubt that arises logically from the evidence or an absence of evidence.

Credibility and Reliability

[14] 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. 9-13):

9 … [E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, … at p. 134 S.C.R.

10 … [N]o inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

11 … [D]espite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469.

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. [some inapplicable list numeration and some citations eliminated]

[15] Reasonable doubt applies to the issue of credibility. On any given point, I may believe a witness, disbelieve a witness, or not be able to decide. I need not fully believe or disbelieve one witness or a group of witnesses. If I have a reasonable doubt about A.H.’s guilt arising from the credibility of a/ witness/es, then I must find her not guilty.

[16] Reliability is a separate issue from credibility. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), 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. Of note, at para 41, the court wrote, “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.”

[17] It is important in sexual offence cases to avoid stereotypical reasoning in making determinations of credibility and reliability. Victims of abuse will behave idiosyncratically to abuse, and often counterintuitively, and the law does not require a victim of sexual assault to avoid in order for a court to find him or her credible: R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), at para. 58; aff’d 2018 SCC 6, [2018] S.C.J. No. 6, at para. 2.

The Rule in W.(D.)

[18] A.H. did not testify but her video statement was ruled by me as admissible as evidence on the trial. Accordingly, 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 (“W.D.”).

[19] In W.D., the Court offered the following guidance on how to approach the analysis at paras. 27 and 28:

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]

28 … 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.

Background

[20] On February 21, 2019, Sault Ste Marie Police Service, Detective Sergeant Rice (“D/Sgt Rice”), was alerted by the Children’s Aid Society (“CAS”) of a report pertaining to the possible creation and distribution of photographs which could be defined as child pornography, based on a statement made to CAS by the complainant L. H-A.

[21] L.H-A. was interviewed by CAS worker M.G. on February 21, 2019 which interview was video recorded. In the interview L.H-A. identified that her mother, A.H., had been involved in the creation of nude photographs of L.H-A. and that they were believed to have been sent to a male by the name of “Ed” who A.H. was in an online relationship with at the time the photographs were taken. She stated she believed she was age 11 at the time.

[22] At the beginning of the time frame stated for the offences, namely January 1, 2015, L.H-A. was 10 years old, turning 11 years old in March of that year. She was born in March of 2004. She was 18 years of age at the time of trial.

[23] Based on the information received, D/Sgt Rice applied for and was granted a valid search warrant for A.H.’s residence (“the residence”), to locate and seize electronic devices that may have been used in the commission of the alleged offences.

[24] D/Sgt Rice as well as other members of the Sault Ste. Marie Police Service attended the residence on the morning of February 25, 2019.

[25] On this said date, at the residence, D/Sgt Rice had contact with A.H., explained to her the search warrant, the possibility of charges and though she was not yet under arrest, her right to counsel and caution. This conversation occurred in the kitchen of her residence. The accused advised she did not wish to call a lawyer if she was not being charged. The accused was advised that she could change her mind concerning this choice at any point.

[26] The accused began to make utterances and converse with D/Sgt Rice pertaining to the offences in question at the residence after rights to counsel, caution, and reviewing the warrant. She initiated the conversation. That conversation was synopsized in D/Sgt Rice’s notes. During this conversation, D/Sgt Rice requested that the accused accompany him to the Sault Ste Marie Police Station so that any further conversation could be accurately recorded after A.H. made the said utterances which included utterances concerning her involvement. A.H. agreed to do so.

[27] On February 25, 2019, the accused provided a 38-minute interview to D/Sgt Rice at the Sault Ste. Marie Police station which was audio/video recorded.

[28] Following this interview, the accused was released unconditionally while the police continued their investigation. D/Sgt Rice indicated that he would be in touch with her in the future to arrange for her arrest once the investigation was complete.

[29] On May 17, 2019, D/Sgt Rice contact A.H. and arranged for her to turn herself in to Sault Ste. Marie Police on May 21, 2019.

[30] On May 21, 2019, A.H. turned herself in at the Sault Ste. Marie Police Service station and A.H. was arrested.

[31] The accused was again on May 21, 2019, provided with rights to counsel and caution. On this occasion she invoked her right to counsel and D/Sgt Rice facilitated her contact with counsel, Ms. Belisle. Following the accused’s exercise of her right to counsel, further conversation occurred on this date between the accused and D/Sgt Rice which was captured on audio/video recording.

[32] The Crown called the complainant, the CAS worker who took the child’s statement which was video recorded, and D/Sgt. Rice, and various voir dires were held.

[33] I made a ruling that pursuant to s. 715.1 of the Code, the DVD statement of the complainant made February 21, 2019 was admissible as evidence of the complainant in the trial, along with the transcript as aid, excluding the evidence on the recording that is transcribed on page 21 of the transcript at line 22 to and including page 25, line 22.

[34] I made a ruling that the utterances made by the accused to D/Sgt Rice on February 25, 2019, and the videotaped statements given by the accused February 25, 2019, and May 21, 2019, were voluntary and admissible.

[35] At stage two of a s. 276 Code application I made a ruling on consent of the complainant, and defence and the Crown that the complainant could be questioned on the timing of her realization with respect to six incidents in which the topic of the appropriateness of sending nude photos may have been addressed with her prior to attaining age 15, and for purposes of testing her evidence that she never really had a chance to say anything to CAS workers with respect to the acts complained of.

Time and Place for All Three Counts

[36] Given the evidence regarding L.H-A.’s date of birth and age at the time, supported by A.H.’s statement to police February 25, 2019, regarding her belief of L.H-A.’s age at the time; and where the acts complained of were said to have occurred by L.H-A., A.H. acknowledging they were living together at the Moose Lodge apartments in Sault Ste. Marie at the time, these elements for all three counts are established with respect to the commission of the offences as set out in the indictment.

Child Pornography

Definition Applicable to this Case

[37] The definition of child pornography in s.163.1(1)(a) of the Code includes photographic representation whether or not it was made by electronic or mechanical means. Section 163.1(1)(a)(ii) provides further definition to include photographic representations where the dominant characteristic of the representation is the depiction for a sexual purpose, of a sexual organ of a person under the age of eighteen years.

Age

[38] The complainant testified that she was 11 years old at the time the photographs she described were taken. In her statement to D/Sgt. Rice given on February 25, 2019, A.H. A.H. believed the involvement with Ed occurred when she was residing at the Moose Lodge apartments. Her guess was that L.H-A. was around eleven years of age at the time.

Photographic Representation

[39] In this case, the court does not have the actual photographs/images that are alleged to have been created which are alleged to constitute child pornography. A.H. submits she does not admit to taking nude photographs. She has made admissions to taking photographs of L.H-A. in lingerie.

[40] Notwithstanding that the images are not available; I agree that there is evidence before the court to enable the court to come to a determination on this issue. The court has the testimony of L.H-A and the February 25 statement of A.H. Defence conceded in submissions that the court did not require the actual photographs but raised same as an issue.

[41] L.H-A. testified that photographs were taken of her depicting the naked upper half of her body, including her breasts. She described that for these photographs, she remembered that she removed the clothing from the upper half of her body including her bra and a photograph was taken of the naked upper half of her body, her breasts, and arms. In some, her face may also have been depicted. The specific purpose of taking the photographs she remembered was to capture the naked upper half of her body. The photographs were only taken once her bare breasts were exposed.

[42] L.H-A. was able to provide details as to when the photos were taken, what was photographed, the circumstances of taking the photograph (disrobing in her mother’s room with the door closed), where they were taken, the conversation as to what would be photographed, what was agreed would be photographed, who the photographs were for, and who was there. Her evidence was credible. Many of the aspects of her evidence were not contradicted, including but not limited to her mother’s relationship with Ed, that he wanted photographs, that her mother talked to her about that, that her mother took photographs of her for Ed, that Ed was interested in photographs of a sexual nature. She trusted her mother at the time and did not appreciate it was wrong.

[43] At the time of her February 25, 2019-interview, the record establishes that A.H. was aware that L.H-A. had alleged that topless photographs had been taken. During the interview, shortly after A.H. admitted that she had taken photographs of L.H-A. in lingerie and in the context of photographs being taken, A.H. was told by D/Sgt. Rice that L.H-A. had spoken about topless photographs having been taken of L.H-A. as well, but nothing from the waist down, which A.H. agreed was correct. Specifically, she nodded her head in the affirmative and responded “yes”. While I agree A.H. does not outright admit that she, meaning A.H. took these photographs herself, by this answer she in my view was acknowledging same had been taken and her knowledge of same. She further presented as agreeing with her body language it was the same scenario as the lingerie photographs, namely she did not know if she, meaning A.H. sent the topless photos to Ed. Of further note, is that at the time she was being interviewed by D/Sgt. Rice on February 25, 2019, she was asked whether it was probably safe to say that everything her daughter provided was accurate in the context of L.H-A.’s disclosure. A.H. agreed that to an extent it was probably safe to say that everything her daughter provided to police was accurate. What was inaccurate she identified was only the way it was worded, namely that it was for the intent for providing child [pornography]; there was no intent whatsoever.

[44] For these reasons, I accept L.H-A.’s evidence that photographs were taken of her nude upper body that depicted her breasts, that they existed, that they were taken.

Dominant Characteristic: Sexual Organs

[45] The act of removing clothing, to create the photograph, I agree speaks to demonstrating the dominant characteristic of the photo(s).

[46] The stated purpose for the photograph(s) according to L.H-A. was to provide same to Ed.

[47] A.H. acknowledges that Ed had asked her for photographs and that he was interested in “the sexual”. He even asked her to do sexual things with her daughter and even her son.

[48] I agree that to suggest that female breasts are not organs related to the sphere of libidinal gratification would be to deny reality: R. v. V.P.S., 2001 BCSC 619 at para. 82. Objectively, I agree all would characterize female breasts as a sexual organ.

[49] I find there is no other logical dominant characteristic in the circumstances of this case, on the whole of the evidence, of such a photo other than it was taken to depict the naked upper half of the complainant’s body, L.H-A.’s breasts.

[50] I agree that if the dominant characteristic was to depict any other part of L.H-A.’s upper body than her bare chest, same could have been taken without L.H-A. removing all her upper body clothing, including her bra.

[51] I find the dominant characteristic is the depiction of L.H-A.’s breasts which are sexual organs.

For a Sexual Purpose

[52] As for sexual purpose, I am guided to consider the description of the images as a whole and whether same is likely to stimulate sexual interest based on the image itself.

[53] Parliament has worded the definition to capture depictions of a child’s sexual organs. Depiction of a child’s sexual organs is extreme when not taken innocently or any other lawful reasons, and constitutes a serious violation of the privacy and dignity of the child: R. v. J.E.I., 2005 BCCA 584 at paras. 16-18.

[54] On the evidence as a whole, and especially the context in which they were taken, there is no evidence to support a conclusion or doubt that the photographs were taken for innocent purposes or any other lawful purpose, including educational, artistic, or medical. There is no evidence the photographs were taken accidentally.

[55] When D/Sgt. Rice attended the residence to execute the warrant, the accused began to make utterances and converse with D/Sgt Rice pertaining to the offences in question after rights to counsel, caution, and reviewing the warrant. She initiated the conversation. The conversation started when A.H. stated to D/Sgt. Rice that she felt ashamed. She felt embarrassed. She went on to state that she had done some stuff “with Ed” and took photos of her daughter in lingerie. She was asked if she remembered what device she used and she could not. However, when asked about older phones, A.H. stated that she had an old phone at the time but sold it in order to get a new phone. A.H. continued to talk. D/Sgt. Rice who interpreted A.H. to go on to blame her daughter for what had occurred, namely that her daughter had no boundaries, walked in her room on her and tried on her lingerie as well. A.H. stated that Ed wanted to do more stuff with her, her daughter and son but she never did with her son. Ed had money and promised a trip that never happened. She brought up the name Ed in the conversation, D/Sgt. Rice did not. I state this acknowledging that the warrant that she read prior did contain the name Ed in the allegations, but more importantly to note that the warrant included but was not limited to images that were being searched for that showed sexual organs of a person or persons under age 18 being for a sexual purpose.

[56] In her statement to D/Sgt. Rice given on February 25, 2019, A.H. acknowledges the taking of photographs and tells D/Sgt. Rice what Ed was asking her to do. This informs me as to as to A.H.’s understanding of what she was being asked to do and by whom and the reason.

[57] In her statement to D/Sgt. Rice on February 25, 2019, A.H. stated that she met Ed on a dating site called Badoo. She had difficulty remembering what he looked like and where Ed was from. All she ever had him down as was “Ed” who she described as “some rich dude”. She stated it was “normal” for her to be treated like she was somebody’s ‘slut’ back then. She stated that things with Ed were getting weirder and weirder. She does not know how it got from her, to trying to involve her daughter. He really convinced her that it was normal. He told her that it was better for her to teach her child about sexual things. There was no one better than her to do it. I acknowledge that she stated that she stopped the relationship because she could not follow through with any of it. However, she stopped all conversations with Ed, when and because, he then started to bring her son into it too. A.H. admitted to taking photographs of L.H-A. in lingerie and it was also after he was asking her to do things with L.H-A. She had knowledge of topless photographs.

[58] I noted A.H.’s statement that she was not thinking child pornography at the time; she loves her children and did not want to do anything to L.H-A. However, it is difficult to accept, and I do not believe her, that she was not thinking child pornography at the time. Part of her February 25-statement included that Ed explicitly referred her to mother/daughter porn. He was interested in “the sexual”. She was doing sexual things for Ed. L.H-A. was 11 years of age. Ed wanted her to do sexual things involving toys with her daughter as well. A.H. was in a relationship with Ed at the time. She was sending photographs of herself and engaging with Ed for a sexual purpose online. The complainant gave evidence to this affect. A.H. confirmed this in her said statement. Again, Ed was convincing A.H. it was normal and referring her specifically to other mother/daughter porn online [emphasis mine].

[59] Accordingly, I find it very incredible that she would not have been contemplating that what she was doing was either child pornography or akin to child pornography. And if she was not thinking this and I am wrong, on this evidence, she certainly was reckless and/or wilfully blind to what was being asked of her on the whole of the evidence.

[60] It may well be that A.H. got caught up in this relationship, demonstrated by her statements that she did not know what she was thinking, which she expressed more than once. However, even if that happened, this does not change my view on what she appreciated or ought to have at the time or wilfully chose not to appreciate.

[61] A notable segment of A.H.’s February 25-statement is as follows:

A.H.: So, she knew too much about my private life already. She knew in my room where I have my toys and all sorts of things. My lingerie. D/Sgt. Rice: Ya. A.H.: I found her trying my I – my stuff on already you know. So, I mean it’s not just all me. D/Sgt. Rice: Right. A.H.: But I take full blame for what happened here because I don’t know what I was thinking. D/Sgt. Rice: So, what, what happened? At some point you, you take pictures of your daughter. How does that get to that point? Like what, what Ed is asking you to do with her? A.H.: He’s telling me that I’m teaching my daughter. D/Sgt. Rice: Okay. A.H.: Made it seem like it was a good thing. D/Sgt. Rice: What, and what he want? What... A.H.: I wasn’t the only one he said. There are a lot of mothers out there who, you know, (shakes head) I don’t know what he wanted. He’s... D/Sgt. Rice: No like... A.H.: sick... D/Sgt. Rice: sp – specifically when he’s telling you at this point, what is he telling you? What is he scripting you to do with, with your daughter? A.H.: Well, he even wanted me to, he goes I don’t know, uh teach her different things. Like, uh, I don’t know what the pictures were supposed to do but... D/Sgt. Rice: Okay. A.H.: You know just he cared about the sexual and then there was my toy to even but I wouldn’t use my toy on her. I wouldn’t, won’t go that far. D/Sgt. Rice: Did he ask you to use this, your, your toy on her? A.H.: Basically, I think. I don’t, I don’t even remember. So, he asked me... D/Sgt. Rice: Alright. A.H.: to do some many things. He asked her, he asked, I don’t think he asked me to use the, he’s, he asked me to use a whole bunch of different things on myself... D/Sgt. Rice: Ultimately but... A.H.: but I don’t believe (coughs). D/Sgt. Rice: Now your, your daughter you took um, photos of her in lingerie, in your lingerie. A.H.: (nods head) I do believe there was some of her in my lingerie. D/Sgt. Rice: Did you send those to Ed by chance? A.H.: (shrugs and shakes head) Honestly, I don’t even remember which... D/Sgt. Rice: Okay. A.H.: I’ve sent to him. You’ll have to find out because I’m not trying to lie. D/Sgt. Rice: No... A.H.: I just don’t... D/Sgt. Rice: no. No, I under-... A.H.: I tried to... D/Sgt. Rice: and, and your daughter Leslie had, has spoken about uh, taking topless pictures of her as well but there was never anything taken with, from the waist down... A.H.: (nods head) D/Sgt. Rice: is that, is that correct? A.H.: (nods head) Yes. D/Sgt. Rice: Alright and the same thing there? You don’t know if you sent him those... A.H.: (shrugs and shakes head) D/Sgt. Rice: pictures or not? A.H.: (shakes head) D/Sgt. Rice: Okay. A.H.: I don’t even know what I sent anywhere. D/Sgt. Rice: And your daughter had mentioned at some point um, I recall how this went in. She walks in in the bedroom and you’re having a, an on-line conversation with Ed and uh, at that point uh, somebody brought up whether it was him or you, I can’t remember or both about uh, interacting her with you in front of that with him. Does that seem about accurate? A.H.: Ya he wanted us to do things like that. (shakes head) I couldn’t do things with my daughter. It just, I didn’t feel comfortable. I knew she wasn’t comfortable. (shakes head) So ya he probably did... D/Sgt. Rice: Okay. A.H.: bring up. He wanted all sorts of things done.

[62] I agree that interpretation that the photos were taken for any other purpose other than sexual on the facts of this case would be illogical. Further, the taking and sending of photographs of an 11-year-old in a sexual way, or of sexual organs, was not stated by A.H. to be educational. A.H. claims she did not know what the pictures were supposed to do. There is no logical inference to draw on this record that teaching L.H-A. to take and send sexual photographs at age 11 constitutes simply teaching L.H-A. about sex.

[63] There would be no reason for the complainant to remove her clothing if the dominant purpose was not a sexual purpose. The act of removing clothing demonstrates the purpose as being sexual.

[64] In sum, I have no doubt that the photographs were taken, and that they were for a sexual purpose.

Conclusion

[65] I accept the photographs described by L.H-A. were taken and find that they constitute child pornography as defined by the Code.

[66] Having an actual copy of the photograph does not preclude the court from accepting the evidence of the complainant that such photographs were taken.

[67] It matters not in my view that L.H-A. cannot remember who took the photographs and/or seeing the photographs themselves after they were taken, based on A.H.’s involvement. A.H. confirms knowledge of topless photographs being taken of L.H-A. in the context of the circumstances involving Ed and questions as to what, if any of them, she sent to Ed. As such, the absence of the photographs themselves and/or the credibility and reliability of L.H-A.’s evidence is not affected by same in my view.

Count One s. 163.1(2): Making Child Pornography

Issue

[68] The issue identified by the Crown for this count is the making [emphasis mine] of child pornography.

[69] This offence is not premised on actually making it available and the “making it available” cases are thus distinguishable. “Making it available" is a step further to making it. Making it alone, is enumerated in s. 163.1(2) of the Code.

Did A.H. make child pornography of 11-year-old L.H-A.?

Age

[70] As found above, L.H-A. was 11 at the time. Those findings and considerations apply here. I will not repeat them.

Child Pornography

[71] I have found that photographs were taken, and that they meet the definition of child pornography. I will not repeat those findings and considerations here but will clarify that they apply to this analysis.

[72] In this case, I also acknowledged that the court does not have a copy of any of the photographs the complainant states were taken. In addition to L.H-A.’s evidence, the evidence reflects they were taken on A.H.’s cellphone and A.H. no longer had the cellphone at the time the search warrant was issued and executed. The seized computer despite efforts could not be successfully examined. The above findings and considerations on my acceptance that photographs were taken also apply.

“Making”

[73] Creation involves an instance of child pornography that is different from existing instances. This includes taking a photograph that qualifies as child pornography: R. v. Keough, 2011 ABQB 48, para. 232 and R. v. O.P., 2012 ONSC 3611, paras. 124 and 131.

[74] This case undoubtedly involves images that did not previously exist, namely photographs of L.H-A.’s naked upper body, which depicted her breasts, taken when she was 11 years old, using A.H.’s cell phone.

[75] As alluded to above, an issue suggested in this case is that there is no confirmatory evidence as to who in fact took the photographs of L.H-A.’s nude upper body, whether it was L.H-A. or A.H. herself. L.H-A. does not remember, she is unsure now at the time of trial. More than one photograph had been taken of her over a span of time. She was 11 at the time. She was 15 at the time of disclosure and 18 by the time of the trial. I accept the foregoing as reasonable considerations for any inconsistencies and there is other evidence concerning A.H.’s involvement whether A.H. or L.H-A. took them. That does not cause me to doubt L.H-A.’s credibility and/or reliability.

[76] I acknowledge that A.H. admitted to D/Sgt. Rice to taking photographs for Ed, but in the context of L.H-A. being in lingerie. A.H. herself by her own admission however had troubles remembering, and she stated this was especially so with things she did not want to remember. A.H. undoubtedly confirms knowledge that topless photographs were taken of L.H-A. in the context of the situation involving Ed when she was being interviewed specifically about same.

[77] Moreover, I agree that it is not just the simple act of pushing the button on the device to take a child pornographic photograph that attracts culpability for this offence: R. v. Hewlett, 2002 ABCA 179. In Hewlett case, Mr. Hewlett was the one who had taken the steps to organize the making, and production of the child pornography that was the subject of that case. He was not the one who took the actual images. Hewlett is analogous and instructive to this case.

A.H.’s Involvement

[78] Regardless of who took the photographs, there is evidence that supports that A.H. was one of the seekers of photographs (took and made the request of L.H-A. for photographs of a sexual nature suggested by Ed); organizer of the making of them (she provided the location and device for the taking the photographs, meaning her bedroom and her cell phone was used) and was a supervising participant/director in the making of them (meaning L.H-A. testified that A.H. was present with her in the room when they were taken, and had a conversation with L.H-A. prior about what Ed wanted and was involved in deciding what would be photographed).

[79] L.H-A. testified that A.H. was involved and was not moved on that. She presented as an honest witness who was not being careless about telling the truth.

[80] L.H-A. testified that she was asked for the photographs in question by her mother, that her mother was the only other person there when the photographs were taken in the same room with her, namely, A.H.’s bedroom, that this was the room she disrobed in to take the photographs with the door closed, and that her mother’s phone was used to take the photographs. In such a case, A.H. would have knowledge of the content of the photographs prior to their making, is a person who asked for them to be made, was present when they were made, which would include knowledge that they included the nude upper body of L.H-A., who she knew was 11 years of age at the time.

[81] L.H-A. testified that A.H. explained to her what Ed wanted and that he wanted her mother to send those pictures to him and to do some other sexual things online. A.H.’s February 25-statement does not contradict this evidence.

[82] L.H-A.’s evidence is that A.H. asked her to do it and was involved as stated above.

[83] The nature of what Ed wanted was explained to L.H-A. by A.H., and in response L.H-A. insisted that the photographs in question would only be of the top half of her body and nothing below the waist. She testified that A.H. agreed. It was through this conversation with A.H. that L. H-A. agreed to take the photographs.

[84] All photographs were taken on A.H.’s cell phone. That is not disputed by the evidence. L.H-A. did not have a cell phone at the time. A.H. identified her cell phone as the device used to take photographs of L.H-A. at the time of execution of the warrant and after.

[85] A.H. had possession of photographs of her daughter on her phone. She acknowledged deleting/getting rid of photographs in the context of being specifically interviewed about photos taken by her of L.H-A. in lingerie and in the context of D/Sgt. Rice specifically asking her about the topless photos L.H-A. had disclosed were taken, that she acknowledged knowing about. In my view, this context cannot be parsed in the manner suggested by defence. D/Sgt. Rice clearly was not asking about innocent everyday photographs given the context of the interview.

[86] I believe L.H-A. that the taking of the photos in question occurred. Based on the aforesaid level of involvement, I find, whether A.H. pressed the button to take the photograph or not, is of no consequence to establishing the offence in this case.

[87] I have no doubt that A.H. was involved, as L.H-A. testified to.

[88] There is an absence of evidence that L.H-A. ever took photographs of this nature prior to her mother allowing for her to become involved in the situation involving Ed. A.H. in my view, essentially confirms photographs were taken at Ed’s prompting. Any evidence of other photographs, taken by L.H-A., comes after this experience with her mother.

[89] Trying on her mother’s lingerie and/or being in her personal business and/or constantly being over her mother’s shoulder and/or walking in on her mother engaging in acts or conversations does not lead to the conclusion that L.H-A. decided to take pornographic photographs of herself on her own accord specifically for Ed and/or did that on her own or raise any doubt for me on the record before me, even if true.

[90] The suggestion that L.H-A. was always involved in A.H.’s personal business even extending to trying on her mother’s lingerie/crossing other boundaries, as a consideration to find that L.H-A. did this act on her own accord without any involvement of A.H. is not accepted by me for the above reasons.

[91] A.H. allowed L.H-A. to be part of a Skype call with Ed during which he asked them to do sexual things:

D/Sgt. Rice: And your daughter had mentioned at some point um, I recall how this went in. She walks in in the bedroom and you’re having a, an on-line conversation with Ed and uh, at that point uh, somebody brought up whether it was him or you, I can’t remember or both about uh, interacting her with you in front of that with him. Does that seem about accurate? A.H.: Ya he wanted us to do things like that. (shakes head) I couldn’t do things with my daughter. It just, I didn’t feel comfortable. I knew she wasn’t comfortable. (shakes head) So ya he probably did... D/Sgt. Rice: Okay. A.H.: bring up. He wanted all sorts of things done.

[92] A.H. listened to Ed. It worked for a while before she stopped listening to him:

D/Sgt. Rice: Can, what can you tell me about Ed? A.H.: Well, he was apparently some rich dude who, in the beginning it didn’t seem too weird but then it started gettn’ wired (nods head) and uh, I guess because of how I am for myself, it was normal to be treated like I’m somebody’s slut so. D/Sgt. Rice: Alright. A.H.: Right? Cause like I said I’ve, I’ve done the pictures. I’ve done things like. But then he started getting’ into weirder and weirder things and saying all these and then I don’t know how it got from me to all of a sudden it, trying to involve my daughter and then... D/Sgt. Rice: Okay. A.H.: and then he tried to make (begins to cry) sorry. D/Sgt. Rice: No that’s okay. It’s understandable. A.H.: He just really had me convinced that it was normal... D/Sgt. Rice: Hmmm...hmmm... A.H.: cause he said who better to teach your child about the, that kind of stuff than you. He said would you rather have somebody other than me tach her about sexual things and it only worked for awhile. I was so, and couldn’t follow through any of it and that’s why I stopped. Like I stopped all con-, conversations with him because then he started to trying to bring my son into it too and it just. I didn’t do this because (crying) I won’t, I wasn’t thinking child pornography.

[93] I do not believe A.H. that she did not follow through either. First, she stated “it worked for a while”. Next, A.H. stated she took photographs of L.H-A. at the very least by her own admission in lingerie at the suggestion of Ed, her very own lingerie. She stated she deleted/got rid of photographs of L.H-A. related to the context of the involvement of Ed. She told D/Sgt. Rice at the time of execution of the warrant, only, that she never did anything with her son. She did not exclude her daughter. She expressed she was ashamed and embarrassed. While it is not clear what was taken, A.H. in her statement referred knowledge of Ed also taking photographs. This was her information to police, not L.H-A.’s information.

[94] There was an absence of evidence of any private sole contact and/or private personal ongoing individual relationship between L.H-A. and Ed at the time outside of A.H.’s involvement/knowledge. In all the explanations of L.H-A.’s behaviour, A.H. never once stated that L.H-A. did anything in the context of taking photographs for Ed all on her own and specifically during all the times she went on about her daughter crossing boundaries in the ways she described.

Conclusion

[95] For these reasons, I am satisfied and find that the Crown has proven beyond a reasonable doubt that A.H. made child pornography of 11-year old L.H-A.

Count Two s. 163.1(3): Possession for the Purpose of Distribution of Child Pornography

Issue

[96] The issue identified by the Crown on this count is possession for the purpose of distribution.

[97] This offence is not premised on actual distribution and as such distribution cases are distinguishable.

Did A.H. possess child pornography for the purpose of distribution?

Child Pornography

[98] I have already articulated reasons and made findings that the photographs were taken and that they constitute child pornography and will not repeat them. They apply to this offence analysis.

For the Purpose of Distribution

[99] I do not believe A.H. that she did not know the reason for the taking of photographs. She and Ed had conversations about her teaching L.H-A. about sexual things amongst other things as excerpted from her February 25-statement above in this decision.

[100] A.H. herself was taking photographs of herself for Ed amongst other things and sending them.

[101] Ed asked her to do other things with her daughter. She took photos of L.H-A. in lingerie, her very own lingerie.

[102] A.H. knew and acknowledged that topless photographs had been taken as excerpted from her February 25-statement above in my decision.

[103] A.H. may even have distributed photographs to Ed, including the ones subject to this case which is relevant to examining purpose. She never stated that she did not in the context of being asked about what happened to the photographs. She could not remember:

D/Sgt. Rice: and, and your daughter Leslie had, has spoken about uh, taking topless pictures of her as well but there was never anything taken with, from the waist down... A.H.: (nods head) D/Sgt. Rice: is that, is that correct? A.H.: (nods head) Yes. D/Sgt. Rice: Alright and the same thing there? You don’t know if you sent him those... A.H.: (shrugs and shakes head) D/Sgt. Rice: pictures or not? A.H.: (shakes head) D/Sgt. Rice: Okay. A.H.: I don’t even know what I sent anywhere.

[104] In her February 25 statement, A.H. also agreed that to an extent it was probably safe to say that everything her daughter provided in her disclosure was accurate. What was inaccurate she stated was only the way it was worded, namely that it was for the intent for providing child [pornography]; there was no intent whatsoever.

[105] Again, I acknowledge that A.H. stated to D/Sgt. Rice that she did not know what the pictures were to do. I have already articulated in these reasons that I do not accept this. Her own statement includes that Ed explicitly referred her to mother/daughter porn. Ed had brought this all up to her (A.H.), whether he gave her pictures, or links to actual sites or not. To suggest that she did not know the nature on the whole of the evidence and in such a context, in my view, is not believable.

[106] As stated already in this decision, I accept the photographs were taken with A.H.’s cell phone. L.H-A. testified that her mother was present when she disrobed, and the photographs were taken in A.H.’s bedroom. As such, she would have knowledge of the content of the photographs, that they include the nude upper body of L.H-A., who she knew was 11 years of age at the time. I acknowledge that A.H. is unable to tell police if the photographs were transferred to her computer, but stated it was possible. However, there is no doubt on the evidence they were taken on her cell phone. Thereafter, she had control over photographs that were taken. This is clear in my view from her statement to D/Sgt. Rice given February 25, 2019. She was asked what she did with the photographs of her daughter. She responded that she deleted them, she got rid of them. She nodded her head in the affirmative that she had some on her phone. She was the one that was able to and in fact deleted them. Again, the context of this interview is quite clear and L.H-A.’s allegations were clearly made known to A.H. which included the taking of topless photographs and photos related to the situation involving Ed. Prior to being interviewed, she reviewed the search warrant which advised of possible charges related to child pornographic images involving Ed.

[107] I appreciate that neither L.H-A. or A.H.’s evidence establishes with certainty that the photos in question were transmitted, but this offence does not require the actual transmission to have occurred, that A.H. may never have followed through with it, is not determinative of this offence. The photographs were not created accidentally or for L.H-A’s personal use, or any other innocent purpose on the evidence before me as I stated above in the analysis of the content of the photographs described by L.H-A. I am satisfied the photos complained of were taken and on A.H.’s phone and she knew about them. While it is not clear what was taken, A.H. in her statement also referred to Ed taking photographs. This was her information to police, not L.H-A.’s information. I am satisfied that the photos were intended for and to be sent to Ed. Again, in her statement to D/Sgt. Rice, in the context of talking about photographs of L.H-A. A.H. stated that she did in fact send pictures to Ed, but that she simply could not recall which ones. That is the interpretation in my view of these statements, not that she never sent or never intended to send images to Ed.

[108] I have no doubt that the purpose of taking photographs, which I do not doubt were taken, included intention to provide photographs to Ed, which amounts to possession for the purpose of distribution.

Conclusion

[109] For these reasons, I am satisfied and find that the Crown has proven beyond a reasonable doubt that A.H. possessed child pornography for the purpose of distribution.

Count Three: s. 172.2(1): Agreement or Arrangement – Sexual Offence Against Child

Issue

[110] The Crown identified the “offence” for this charge as offences under s. 163.1 of the Code, as enumerated in s. 172.2(1)(a).

Did A.H. by means of telecommunication, agree with a person, or make an arrangement with a person to commit an offence?

Telecommunications and Person

[111] L. H-A. testified that the person in question is Ed. L. H-A. testified that Skype was being used to speak with Ed. She testified that A.H. had a conversation wherein she was explaining what Ed wanted. A.H. communicated to L.H-A. that she had these conversations with Ed herself. L.H-A. also testified that she remembered talking to her mother about the situation and agreeing to it, in the context of how she knew that nude photographs were what Ed wanted from her. If photographs were just for any innocent purpose, there would be no need for A.H. to say they would be for Ed, in my view.

[112] I find that the fact that I do not have physical evidence of telecommunications in this case is not a barrier to making findings for this offence. There is other credible and reliable evidence in this case, and evidence of A.H. herself of same that does not contradict L.H-A.’s evidence or raise doubt.

[113] A.H. confirms she allowed L.H-A. to be part of a Skype call with Ed during which he asked them to do sexual things:

D/Sgt. Rice: And your daughter had mentioned at some point um, I recall how this went in. She walks in in the bedroom and you’re having a, an on-line conversation with Ed and uh, at that point uh, somebody brought up whether it was him or you, I can’t remember or both about uh, interacting her with you in front of that with him. Does that seem about accurate? A.H.: Ya he wanted us to do things like that. (shakes head) I couldn’t do things with my daughter. It just, I didn’t feel comfortable. I knew she wasn’t comfortable. (shakes head) So ya he probably did... D/Sgt. Rice: Okay. A.H.: bring up. He wanted all sorts of things done.

[114] A.H. stated that she corresponded with Ed on her cell phone and computer at the time, only via telecommunication applications, namely Badoo and Skype.

[115] She does not deny sending photographs. She just does not remember what she sent.

Agree With/Make an Arrangement With

[116] A.H. stated that Ed was convincing her to take photographs of herself, her daughter, and to do other things with her daughter via these telecommunication platforms. By her own statement, he even tried to involve her son. She knew Ed cared about the sexual in terms of what he was asking of her.

[117] Ed tried to normalize this according to A.H. He referred her to other mother/daughter porn in their conversations. She stated more than once that she did not know what she was thinking.

[118] She carried through with requests he was making. This to me demonstrates agreement. A.H. admitted to taking photographs of L.H-A. in lingerie and that is was correct that topless photographs were taken. A.H. confirmed what L.H-A. disclosed was accurate.

[119] Photographs were taken over a span of time. Any evidence of A.H. regarding photographs was in the plural. She never states there was only one. She stated she deleted them, using the plural. She got rid of them. Again, this was in the context of photos related specifically to the situation when she was involved with Ed. She presents as understanding that clearly.

[120] A.H. does not know what she sent to Ed. She cannot recall. She did not deny sending photographs, she just cannot recall. Further, she cannot recall if she used her computer, but did not deny same, saying she did not want to lie and that police would have to check. It is logical to conclude that if she did not ever send photographs using her computer of L.H-A., she would not have invited police to check. Again, the context was focused on photographs of L.H-A regarding Ed.

[121] Whether or not she sent the photos in question to Ed, I have no doubt that he convinced her, and she agreed and made an arrangement with Ed to get her 11-year-old daughter involved in the act of taking photographs for a sexual purpose and this agreement arose via telecommunication Badoo and/or Skype and the sending was to be by telecommunication using her cell phone and/or computer.

[122] As for the context of Ed’s requests, again, A.H. knew Ed cared about the sexual aspect. I will not repeat this evidence and refer the reader to my reasons and considerations above of the other offences in my analysis of same, including how Ed and L.H-A. came to be involved, photographs that were taken, conversations that were had, the timing of the occurrences, the discussions between L.H-A. and A.H. about what happened with Ed, and A.H.’s comments to D/Sgt. Rice about the accuracy of L.H-A.’s disclosures and her involvement.

Offences

[123] First, this offence does not require that the offences agreed to or arranged have to be in fact committed and/or that the photographs themselves be in evidence.

[124] I have found that offences under s. 163 of the Code were committed. The offences in question are the making of and possession of child pornography for the purpose of distribution. In this case, I have accepted that photographs were taken of L.H-A. of her nude upper body that included depiction of her breasts, with the view of sending them to Ed.

[125] As for the context of Ed’s requests, again, A.H. knew Ed cared about the sexual aspect. I will not repeat the evidence for the offences, and refer the reader to my reasons and considerations above in my analysis of same, including also, how Ed and L.H-A. came to be involved, photographs that were taken, conversations that were had, the timing of the occurrences, the discussions between L.H-A. and A.H. about what happened with Ed, and A.H.’s comments to D/Sgt. Rice about the accuracy of L.H-A.’s disclosures and her involvement.

Conclusion

[126] Based on the evidence and the circumstances at the time, and what was said to whom and by whom, and what transpired over a span of time, I am satisfied beyond a reasonable doubt as stated above, that A.H. made and possessed photographs and/or was involved in the making of and possession of child pornography photographs of L.H-A. of sexual organs, namely her breasts, for a sexual purpose with a view to sending them to Ed. She was convinced by him and agreed to do so.

[127] For these reasons, I am satisfied and find that the Crown has proven beyond a reasonable doubt that A.H. by means of telecommunication, agreed with Ed, and made an arrangement with Ed to commit offences under s. 163.1 of the Code.

Credibility and Reliability

[128] L.H-A. presented as honest. There was nothing in the manner of her testimony or her demeanour of any concern in my view. The gaps in her memory are understandable considering the passage of time and her age at the time. In addition, L.H-A. presented with present memory of the important elements of the offences and facts, many of which were not contradicted and in fact, in some cases were supported by the statements of A.H. to police as I have set out in these reasons. L.H-A. readily and forthrightly advised when she was unsure of something. She was not willing to commit to anything if she did not have a firm belief or present memory. She did not embellish or exaggerate.

[129] I am satisfied that the Crown has established that L.H-A. did not have a motive to fabricate based on any of her home life situation, personal feelings, anger or wanting to live with her then boyfriend when she made the disclosure; alone or combined.

[130] As to the complainant’s home life situation at the time including but not limited to: her grounding for having her boyfriend in her room; leaving home and staying elsewhere abruptly without telling A.H.; her behavioural issues related to drug use; taking nude photographs of herself including the repeated engagement of CAS; her personal feelings about her mother’s love for her; her anger with her mother for reporting her missing to police; wanting to live with her boyfriend; and police and/or CAS allegedly prompting her to report something that would stop her return home, none of these foregoing issues/evidence on the whole of the evidence causes me doubt that L.H-A. embellished or fabricated what she disclosed regarding the situation with Ed and taking of topless photographs.

[131] I acknowledge that the evidence supports that she did not want to disclose what she disclosed and perhaps never would have, if not for her not wanting to return home at the time. I also acknowledge that she effectively warned her mother that she would disclose in advance based on her evidence. I acknowledge a history of CAS involvement and behavioural issues, including the taking of nude photographs and L.H-A. did not like her mother involving CAS. However, these events were after and A.H. has acknowledged Ed was asking her for many things and it got to a point where it involved her daughter when she was 11.

[132] I do not agree that the degree of love she felt her mother had for her and/or her brother detracts from feelings of trust, that just because she did not feel loved or felt that her brother was loved more, that she did not trust her mother or listen to her. She was very involved in her mother’s life, supported by A.H. herself. Her trust of her mother or her interpretation of what was right and wrong was based on what she learned from her mother and/or her mother’s actions influenced her.

[133] The sending of photographs and L.H-A’s present knowledge of what her mother actually sent, if anything does not detract from her credibility and reliability on the important elements of the offences before the court. However, L.H-A. was clear that she believes they were sent and that any denials by A.H. was an attempt at manipulation. I do not find this to be improbable given their relationship.

[134] I accepted L.H-A.’s explanation for her motive for disclosure and how it came about and/or delayed disclosure. There is no negative impact on her credibility in my view. She explained the impact of her involvement with CAS and her relationship with her mother.

[135] L.H-A. was very close to her mother. She was her only parental figure at the time. She was not close to her father and did not have a significant relationship with him at the time. She had a great amount of trust in her relationship with her mother. She never wanted to say anything about what happened. It was not until she was in high school that she realized what her mother did was wrong. She had been having conversations with supportive friends which had happened a week or so prior to the time of her disclosure.

[136] The fact that L.H-A. has had CAS involvement and workers, the impact on her was the opposite of finding herself in a comfortable environment to disclose what happened. She explained that she viewed her involvement with CAS as always about her doing something bad and being “spoken to”. These were not positive interactions that would prompt disclosure or prompt departing from her trust relationship with A.H. Given this context, L.H-A.’s expression of not really having a chance to disclose I find is explained. This is so even with respect to the inappropriateness of sending nude photos, that she was spoken to about by CAS and/or teachers from ages 11 to 15. She explained and agreed that CAS and others told her one thing, but she grew up being taught something different by A.H., so just because CAS told her differently, does not mean it stuck, which I agree emphasizes the trust she had of A.H. at the time. What happened with A.H. and trust of A.H. affected her view of her own future actions, including taking nude photographs of herself.

[137] L.H-A. was very close to A.H. A.H. herself stated that L.H-A. was always around her and in her business, so much so that she started locking her bedroom door. A.H.’s own statements support the extent of their involvement at the time.

[138] L. H-A. was forthright about her use of marijuana and there is no evidence to suggest that this use impacted in any way the evidence she provided with respect to these offences.

[139] I found L.H-A.’s evidence to be compelling.

[140] I noted that L.H-A. was very honest and forthcoming about being angry and her purpose for the disclosure.

[141] As to inconsistencies, in the February 21, 2019 statement L.H-A. recalled seeing photographs. March 11, 2021, at the preliminary inquiry, she is not positive she saw the nude photographs of herself. On April 26, 27, 2022, she cannot recall seeing the nude photograph of herself. November 30, 2022, she recalls seeing at least one photograph. What is important is that A.H. acknowledges topless photos being taken. While L.H-A. does vary on this issue on the preliminary inquiry evidence that was put to L.H-A., the entirety of her preliminary inquiry evidence is not before this court. She was 18 at the time of trial. The offences occurred when she was 11. She was almost 15 when she made the disclosure. I agree that a reason for s. 715.1 of the Code, and why exists, is to get the evidence closest to the time of the offence, as the best evidence. She is not required to have full present memory of every event as a consideration for application of this section. L.H-A. herself pointed out that it has been years, namely referring to the passage of time. It often takes years to get to trial, this is true and in fact happened in this case. As I have pointed out above, A.H. acknowledged that it was correct that topless photographs were taken and whether L.H-A. saw them or not or could remember seeing them does not raise doubt that they were taken.

[142] While L.H-A. initially in her disclosure to CAS stated that photographs were taken almost every day, she clarified in that interview that it was more than once, but she could not say how often or how many. I find it is reasonable and fair to interpret from the interview that L.H-A. was using “every day” as a hyperbole. At trial, she clarified it was not every single day, but often enough that it felt like a habit. She was 14 almost 15 at the time she made her initial disclosure and consideration of her age at the time explains her choice of words. I find accordingly, there is no negative impact on her credibility and reliability arising therefrom. A.H. referred to photographs in the plural sense, and of more than one scenario – lingerie and topless.

[143] On the substantive elements of the offences L.H-A. had present memory and there is reliable evidence that contradicts fabrication regarding the offences. L.H-A. was unshaken on what was photographed, why and how it came about. Many pieces of her evidence were not contradicted, including the evidence of A.H. that confirms that on or about this time, Ed wanted A.H. to take photographs and do many other sexual things with L.H-A.

[144] Further, A.H.’s statements confirm that L.H-A and she had a confrontation about the situation involving Ed and they had that confrontation prior to the allegations even being disclosed by L.H-A. L.H-A. explained that in this conversation, she interpreted A.H. as expressing remorse for what had happened as essentially stating that she believed L.H-A.’s behaviour that was the topic of their conversation (namely of sending nude photographs at that time frame of the conversation they were having) may have been precipitated by or related to the situation with Ed. In her May 21, 2019, statement to D/Sgt. Rice, A.H. acknowledged that before “this all came out” it was a topic of argument and confrontation between the two of them. She stated that if her daughter was there on that date, she would tell her that she never meant to hurt her. A.H. has expressed remorse on three occasions with D/Sgt. Rice. She made utterances without prompting of shame and embarrassment at the time of execution of the warrant she expressed remorse in her February 25 and May 1 statements, not blaming L.H-A., taking full blame, not knowing what she was thinking, it was a mistake, not meaning to hurt her. She remarked about her daughter meeting Ed on the basis of wondering that if he had never known of her daughter, this never would have happened.

[145] Further, I do not interpret A.H.’s statement on February 25, 2019, as an outright denial for being involved in L.H-A. being photographed topless for sexual purposes considering the portions of the statement I have already alluded to in these reasons.

[146] I noted, in her May 21, 2019-statement to D/Sgt. Rice, A.H. tells D/Sgt. Rice (taken essentially a month after her disclosure) that L.H-A. wanted to come home which contradicts the defence theory as well in my respectful view that L.H-A fabricated because she did not want to return home.

[147] I considered that this was the first time L.H-A. took photographs of this nature on the evidence before me. This event cannot be said to be a routine event, to be asked by a parent to take nude photographs of yourself. As such, there would be reason for her to remember the things about which she testified.

[148] I find it irrelevant that she took similar photos of herself thereafter in terms of the argument of fabrication. I accept her explanation that because of what happened with A.H. it took her time to appreciate what happened to her was wrong regarding taking photographs of herself.

[149] L.H-A. did not present as making up excuses to avoid answering questions during her testimony. She did not present as reporting to the court an account based on information from other sources. The acts involved her directly. L.H-A.’s evidence was not contradicted on her age at the time, the fact that A.H. was involved with/in a relationship with Ed at the time, the fact that A.H. was communicating with Ed at the time electronically, the fact that A.H. was taking photographs of her at Ed’s request, that Ed was interested in the sexual, and mother/daughter and potentially, mother/daughter/son pornography, and that topless photos were taken.

[150] Despite L.H-A.’s 11-year-old curiosity in A.H.’s private life including the sexual aspects, if true, and/or the advice/encouragement of Ed for A.H. to teach L.H-A. about sexual things, this would not cause me to doubt A.H.’s understanding of what she was being asked to do or what she did.

[151] The private use defence does not fit this case. There is no air of reality. The evidence does not support that L.H-A. was creating lawful photographs for herself and holding them for her personal and private use. The evidence supports circumstances of an exploitive nature and abused position of trust. There was a power imbalance between A.H. and L.H-A., based on age and the degree of control and influence of A.H. on L.H-A. at the time as her mother and only parental figure. She was 11 and cannot consent (assessing lawfulness independently) and cannot be expected to understand the full consequences of what was being asked of her. A.H. is her mother, who L.H-A. trusted highly and was close to at the time. Finally, the Supreme Court of Canada has enunciated that this defence can never be available in cases of child pornography involving children under the age of 12: R. v. Barabash, 2015 SCC 29, at para. 24. Today, this is restricted to those aged 16 or 17 years of age. The photographs were intended to be sent to Ed. This was the understanding at the time they were created. A.H. does not deny in statements to police that photographs were not sent to Ed, she just cannot remember what was sent.

[152] In A.H.’s February 25-statement, the following exchange occurred:

D/Sgt. Rice: Now your, your daughter you took um, photos of her in lingerie, in your lingerie. A.H.: (nods head) I do believe there was some of her in my lingerie. D/Sgt. Rice: Did you send those to Ed by chance? A.H.: (shrugs and shakes head) Honestly, I don’t even remember which... D/Sgt. Rice: Okay. A.H.: I’ve sent to him. You’ll have to find out because I’m not trying to lie.

[153] In A.H.’s February 25-statement, the following exchange occurred:

D/Sgt. Rice: Cause your, your, your daughter described to me that you would take photos on your phone and then somehow they would get on the computer and then you would have conversation with Ed on the computer. A.H.: (shakes head) I don’t know. I talked to Ed, like when we did uh, (signs) words aren’t comin’ to me right now. Whatever that thing’s Skype. D/Sgt. Rice: Okay. What do you think you did with all these, with all these pictures of your daughter? A.H.: Who? D/Sgt. Rice: You. A.H.: Me? D/Sgt. Rice: The other ones you... A.H.: I... D/Sgt. Rice: that you had taken them? A.H.: I deleted them. I got rid of them. D/Sgt. Rice: Okay. Um, you had some on your phone. A.H.: (nods head) D/Sgt. Rice: Then you moved some to the, to the computer to... A.H.: I don’t... D/Sgt. Rice: send out... A.H.: remember... D/Sgt. Rice: but. A.H.: that but. It’s possible that... D/Sgt. Rice: you remember... A.H.: she... D/Sgt. Rice: going on your computer to, to delete? A.H.: (shrugs)(shakes head) I don’t recall my computer no. My phone I, I don’t know. D/Sgt. Rice: Alright. A.H.: I have a bad memory especially with things like this that I don’t want to remember.

Conclusion

[154] I do not believe A.H.

[155] I have no doubt that Ed made the stated requests of A.H. and that she was persuaded and agreed to take photographs and/or to become involved in offences related to child pornography, as he asked.

[156] A.H.’s statements to D/Sgt. Rice do not leave me with any doubt as to her guilt after considering her evidence itself and in the context of the evidence as a whole.

[157] I am not persuaded by the defence argument to interpret A.H.’s February 25-statements to police in the manner suggested, that there is no evidence to clarify what she means or was referring to at any given time. This argument ignores significant context, first the context of the execution of the warrant and what A.H. knew before she ever attended the police station to give an interview. Second, it ignores the context of taking the statement itself, what she knew about and acknowledged why the statement was being taken during the statement. It also ignores the facts that D/Sgt. Rice to put to A.H. and/or informed her of during the taking of the statement. The subject was not innocent photographs or any old photographs of L.H-A. The subject of the interview was without a doubt child pornographic image. There is evidence that she did follow through and in fact was expressing remorse. She told D/Sgt. Rice that Ed also took photographs, and she knew that. She related the point to where it came that she started taking pictures of L.H-A. to Ed, him seeking to teach her about sexual things. She acknowledges he wanted photographs. She sent photographs; she just cannot remember which ones. She did not stop her involvement with Ed until after he tried to involve her son. By this time frame she had taken photographs and allowed L.H-A. to participate in a conversation with Ed. She acknowledged knowing about topless photographs. They may not be admissions of guilt, but the statements are certainly evidence from which it can be inferred, and the only reasonable logical inference is that Ed convinced her, and she agreed to take photographs of her daughter for sexual purposes. This is relevant evidence to supporting the meeting of Ed’s and A.H.’s minds. L.H-A. did not decide to do this all on her own. They were taken because Ed asked for them.

[158] I do not have doubt as to the guilt of A.H. arising from any credibility issues raised/concerning L.H-A.

[159] I do not have doubt as to the guilt of A.H. on the basis of the whole of the evidence I have accepted.

Conclusion

[160] Based on the above,

a. On count one, I find A.H. guilty. b. On count two, I find A.H. guilty. c. On count three, I find A.H. guilty.

[161] This case will be remanded to a date to be set for submissions on convictions arising from my findings of guilty, and sentencing.

Rasaiah J.

Released: March 29, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – A.H. REASONS FOR JUDGMENT Rasaiah J.

Released: March 29, 2023