COURT FILE NO.: CR-19-1658- AP DATE: June 21, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – T.H. Appellant

Counsel: Caitlin Downing, for the Crown John Hale, for the Appellant

HEARD: April 21, 2023

On appeal from the decision of the Honourable Justice M. March, Ontario Court of Justice at Pembroke, dated June 8, 2021.

JAMES J.

FACTS

[1] The appellant was convicted of one count of accessing child pornography pursuant to section 163.1(4.1).

[2] The police became involved following a notification from KIK Interactive Inc., that a single image of a naked child had been uploaded to its platform by an unknown person with the user ID “Mustang30224” from IP address 70.53.88.136.KIK Interactive is a Canadian company that operates an application called Kik Messenger, a free instant messaging mobile application.

[3] The case was assigned to Detective Constable Eric Pinkerton of the Child Sexual Exploitation Unit of the Ontario Provincial Police.

[4] D.C. Pinkerton prepared an application for a Production Order to obtain information from Bell Canada regarding the identity of the subscriber associated with the reported IP address. The request for a Production Order was granted.

[5] The information obtained from Bell Canada led to the appellant. The police then obtained a search warrant for his home which resulted in the seizure of two cell phones.

[6] The request for a search warrant for the phones was granted. The search of the cell phones disclosed child pornography images that prompted the police to arrest the appellant.

[7] Upon arrest the police seized a third cell phone from the appellant that was subsequently searched under the authority of another warrant. This search warrant provided information about a Dropbox account.

[8] D.C. Pinkerton obtained a third search warrant to gain access to the contents of the Dropbox account which contained unspecified child pornography.

[9] At trial, the appellant was found guilty at the end of the Crown’s case based on uncontested evidence.

[10] At the hearing of the appeal, the appellant’s submissions focused on the trial judge’s analysis of the first Information to Obtain prepared by D.C. Pinkerton to obtain the initial Production Order.

[11] In Information to Obtain (I.T.O.) #1 D.C. Pinkerton described the single image which had caught the attention of the operators of KIK Interactive platform in the following terms:

The image is of a fully nude female approximately 9-12 years old. She is kneeling, facing slightly away from the camera. Her left arm is extended upwards, and her left hand is behind her head. Her right hand is on the stomach. There is a watermarking on the image “Lolita’s art” in the top left and lower right of the image. Affiants note —Lolita is a team commonly associated to child pornography investigations.

[12] D.C. Pinkerton deposed that he was attached to the Child Sexual Exploitation Unit (although he did not say for how long) and that he had received training in the area of child exploitation investigations, computer forensic examination, Internet evidence analysis and peer to peer communications. He said that based on his training and experience it was his opinion that the image constituted child pornography.

[13] The appellant says that the trial judge erred in finding that the I.T.O.s provided sufficient information on their face to support a reasonable belief that a child pornography offence had been committed. He also says that the definition of child pornography in section 163.1(1) is very specific, and the image described by D.C. Pinkerton does not meet the definition. Nudity by itself falls short of a depiction of “being engaged in explicit sexual activity” or that the dominant characteristic of the image is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years within the meaning of s. 163.1(1)(a)(ii).

[14] I note that it is not contended that the image did not actually depict the child’s naked breast.

[15] Finally, he contends that the trial judge made an error of law in concluding that a depiction of a pre-pubescent breast constituted a sexual organ.

[16] I do not agree. The trial judge engaged in a thorough and careful review of the Information’s to Obtain, the applicable facts and the relevant caselaw. In particular, he determined that while not perfect, the I.T.O.s were not facially deficient. I see no extricable error of law or overriding and palpable error of mixed fact and law.

[17] The trial judge, applying the appropriate considerations of a judge reviewing the initial decision to grant the Production Order, was entitled to determine that a nude image of a kneeling female child facing slightly away from the camera in a pose with her left arm raised and her left hand behind her head bearing a watermark entitled “Lolita’s art” qualified as child pornography within the statutory definition and as refined by the caselaw. His decision is entitled to deference.

[18] The appeal is dismissed. The appellant is to present himself at the correctional facility from which he was released within 72 hours of the release of this decision.

Honourable Justice Martin James Released: June 21, 2023