SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-24-0142-00

DATE: 2025-12-22

ONTARIO

B E T W E E N:

His Majesty the King

H. Bracken , for the Crown

Crown

• and -

William Joseph Daniel Hubbard

R. Habjan , for the Accused

Accused

HEARD: September 15-17, 2025, at Thunder Bay, Ontario

Mr. Justice S.J. Wojciechowski

Criminal Trial Decision

Overview

1This trial involves the assessment of a video and whether its contents are tantamount to child pornography.

2Counsel filed an Agreed Statement of Facts at the outset of trial which provided most of the evidentiary record in this matter, including the following:

1. On May 10, 2023, a search warrant was executed at 525 Halton Street, Thunder Bay, Ontario, which was the address for the accused, William Joseph Daniel Hubbard (“Mr. Hubbard”). A number of devices were seized, belonging to Mr. Hubbard, including the following:

(a) a Dell laptop computer;

(b) a one Terabyte external drive;

(c) a two Terabyte external drive;

(d) a Samsung S22 Ultra smartphone; and

(e) a Samsung S9+ smartphone.

2. Child pornography, ¹ as that term is currently defined in section 163.1(1) of the Criminal Code of Canada (“the Code ”), was found to be located on five of six exhibits which were seized and examined (“Child Pornography”). In total, 589 unique files of Child Pornography were found, of which 267 were videos and 322 were pictures. The Child Pornography includes toddler aged children engaged in penetrative sexual acts with adults.

3. Amongst the videos, 35 were identified as “incest”. In addition, 40 videos were created by Mr. Hubbard using the “screen record” function on his device to capture himself taking nude photos with an erect penis and sending the images to children.

4. Within the Chat App, Kik Messenger, several Kik chats were recovered. In these Kik chats, Mr. Hubbard identified himself as “Will Jones”, and within these Kik chats, Mr. Hubbard sent and received Child Pornography which notes the ages of the children depicted. Will Jones was very active in these private and group Kik chats, with group chatroom names including “Kiddi Prn”, “kiddy”, and “TheBestAge”.

5. Not only were images shared within the Kik chats found, but also chats including descriptions of sexual acts involving children and descriptions of what Mr. Hubbard wanted to do with the chat participants who identified themselves under the age of 18. These chats and/or conversations are explicit and contain graphic images.

6. Finally, found within Mr. Hubbard’s devices was a video of JP (“JP”). For the purposes of this trial, Mr. Hubbard agreed on the date the video was made, that at that time JP was between the ages of 9 and 11, and that the video was taken while JP was on the couch in Mr. Hubbard’s living room (“the Video”).

Description of the Charges

3As a result of the evidence obtained pursuant to the search warrant executed on May 10, 2023, eight charges were laid, and the Crown preferred to proceed by way of indictment with respect to the counts.

4At the outset of the trial, it was agreed that four counts would be withdrawn. From the four remaining, Mr. Hubbard agreed to enter a guilty plea to three of them, leaving one to be determined by this court.

5Specifically, Mr. Hubbard pleaded guilty to:

i. possession of child pornography in 2023 contrary to s. 163.1(4) of the Code ,

ii. luring a person under 16 years old between 2019 and 2021 pursuant to s. 172.1(1) (b) of the Code to expose his genitals for a sexual purpose contrary to s. 173(2) of the Code ; and

iii. making child pornography in 2023 contrary to s. 163.1(2) of the Code .

6What remains to be determined, then, is the allegation that Mr. Hubbard made child pornography contrary to s. 163.1(2) of the Code between January 1, 2018, and December 31, 2019. This allegation is specifically related to the video of JP, and whether or not the contents of the Video – which Mr. Hubbard agreed he made and includes a very young woman between the ages of 9 and 11 – meets the definition of child pornography pursuant to s. 163.1 of the Code .

What is Child Pornography?

7The Code provides a definition for child pornography which has a visual component – videos and photos – as well as definitions which involve written or audio components.

8This trial focuses on the characterization of the Video, and as such, s. 163.1(1) provides the following as the relevant language under consideration:

163.1(1) 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 . . . .

9In applying the language of s. 163.1(1) , I need to determine whether the Crown has proven, beyond a reasonable doubt, that the Video of JP shows her “engaged in or is depicted as engaged in explicit sexual activity”, or whether “the dominant characteristic” of the video is the “depiction, for a sexual purpose, of a sexual organ or the anal region of a person”.

10Again, for clarity, Mr. Hubbard admits to creating the Video, and that JP was under the age of 18 at the time the Video was made. As such, at issue is whether the Video shows JP masturbating, and if not, whether a dominant characteristic of the Video depicts JP’s sexual organ or anal region which, reasonably perceived, would be intended to cause sexual stimulation.

11Counsel referred me to caselaw in support of their positions on these issues.

Jurisprudence

12With respect to s. 163.1(1) (a)(ii) of the Code , R. v. Perez , 2025 ONSC 2379 ( “Perez” ), at paras. 295-296 , confirms the Crown must establish three things beyond a reasonable doubt:

a. That the dominant characteristic of the Video is the depiction of the sexual organ or anal region of a person under the age of 18;

b. That the depiction is for a sexual purpose; and

c. That the accused made the Video.

13In the present case, it is admitted that Mr. Hubbard made the Video.

14In determining the remaining two considerations, a two step process has to be undertaken in determining whether the Video constitutes child pornography.

15First, whether a reasonable person, viewing the Video objectively, and in context, would see its dominant characteristic as the depiction of the child’s sexual organ or anal region.

16Secondly, whether the Video would be reasonably perceived as being intended to cause sexual stimulation to some viewers.

17The Supreme Court of Canada’s decision in R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 ( “Sharpe” ), para. 50 , states that in determining these two steps, the necessary approach is that governed by the reasonable observer test. Both steps require a determination based upon the image, and not the intent of the person who either has possession of the image or created the image:

The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii) . . . The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

18Sharpe advocates a restrained interpretation of child pornography, but also cautioned against fixing the “precise content” of the types of depictions which are caught under the definition of child pornography. A court’s analysis must be a fact and context-driven exercise in this regard: see R. v. M.B. , 2019 ONCA 237 , at para. 13 .

19In further considering these two steps, Perez suggests at para. 299 , that the following factors are useful to consider in determining if the dominant characteristic is the depiction of sexual organs or the anal region:

a. The number of images of the sexual organs or anal region;

b. The characteristics of the images, including:

i. The clarity of the image;

ii. The proximity of the sexual organs or anal region to the camera;

iii. The duration of the depiction of the sexual organs or anal region;

iv. The camera angle;

v. Whether the camera zooms in on the sexual organs or anal region;

vi. Whether the focus on the sexual organs or anal region seems to be a deliberate intention to emphasize the sexual organs or anal region; and

vii. Whether there are captions or other methods used to highlight the sexual organs or anal region.

c. The context in which the images are taken, including:

i. The significance of the images to the film as a whole including the plot, visual representations, or music;

ii. The apparent purpose of the depiction of the sexual organs or anal region; and

iii. If they are part of a larger collection, the context of the collection as a whole.

20With respect to the second step as to whether there is a sexual purpose, once a court finds that a dominant characteristic of the image is the depiction of a sexual organ or anal region of a child, the court must consider whether, taken as a whole, the image or images are likely to stimulate a sexual interest in some viewers. A non-exhaustive list is provided in Perez at para. 301 to consider in this regard:

• whether and to what extent the children are nude;

• whether there is sexual contact or the poses are sexual;

• whether there are indicia of sexual stimulation of the person depicted or sexual interest by that person in another person;

• whether the activities engaged in are associated with sexual activities;

• whether the images include the use of items commonly used for sexual pleasure;

• whether there are captions or extraneous indicia of sexuality;

• whether the images appear to have been obtained surreptitiously or under protest;

• whether the images are part of a collection of sexual material; and

• the context of the collection as a whole.

21Sharpe maintains that context is important, as the context of any photograph or video can alter its dominant characteristic. A photograph may be assessed objectively as depicting a child’s sexual organ or anal region, but that dominant characteristic may be lost when transplanted into a more benign or innocent collection of photographs: see R. v. Rudiger , 2011 BCSC 1397 (“ Rudiger ”), at para. 140 .

22Accordingly, the presence of clothing may not detract from a picture’s dominant characteristic as being for a sexual purpose or that the photos focus on a child’s sexual organ or anal region: Rudiger , at para. 134 .

Evidence of Chris Dunnill

23Mr. Dunnill was a police officer throughout his career, retiring from the Thunder Bay Police Service five years ago. Presently, he continues to work with the Thunder Bay Police in a civilian capacity as a Cyber Crime Data Analyst, an area in which he worked as a police officer and has been involved with over the past 19 years.

24Mr. Dunnill’s role in this investigation was to examine the 6 devices of Mr. Hubbard which were seized, being 4 hard drives and 2 smart phones. In using computer programs whose purpose is to facilitate a review of electronic files without compromising or changing the data, Mr. Dunnill used various search terms common to child pornography. He got hits on the terms “PTHC”, which stands for pre-teen hard core, “Lolita”, a reference to a Russian publication, and “R@ygold” which refers to a convicted producer of child pornography in the United Kingdom.

25The files which Mr. Dunnill found on the devices of Mr. Hubbard contained images. In assessing those images, Mr. Dunnill indicated that he adopted a conservative approach such that any child who appeared to be above 15 years old was considered “age difficult” and not included. Mr. Dunnill testified that he tried to be fair and err on the side of caution, such that if any images were placed into a child pornography category, he believed that they were 14 years old or younger.

Images and Videos Found

26Mr. Dunnill’s review of the devices seized from Mr. Hubbard resulted in 589 images being categorized as child pornography. Representative samples of these images were introduced as evidence during the hearing.

27A number of photos were found of prepubescent girls, and some boys, naked and posed in sexual positions or performing oral and/or vaginal sex.

28Videos were found depicting prepubescent girls engaged in vaginal and anal sex with men.

29Short video clips were also created by Mr. Hubbard, involving social media chats with girls during which he sent nude pictures of himself. In addition, written exchanges with girls were found involving Mr. Hubbard, including one in which he fantasized having sex with a four year old girl.

30Finally, spy cam images were found in which photos were taken of women – some clearly older, with mostly younger women’s images – who were in public but had no idea that their picture was being taken. None of these spy cam images involved nudity or sexualized conduct.

31Amongst the videos which were found, 35 of them were labelled “incest” and purportedly involved acts between a father and a daughter, or a brother and a sister. Despite the label, it was not possible to confirm if they were, in fact, incest, and Mr. Dunnill did not assess any of these as being child pornography. Several were also categorized as “age difficult”.

32Mr. Dunnill also came across the Video in his examination of the devices.

The Video

33On one of the external hard drives, Mr. Dunnill found a “tremendous amount of videos” which had been made in and around the Hubbard residence. Many inside the kitchen were found, as well as the living room, bedroom and street areas. All of these were single copy videos, i.e., only one version of each video was discovered by Mr. Dunnill.

34Mr. Dunnill testified that the Video was taken in the living room of the Hubbard residence and involved a young female on a couch, laying on her back with her smartphone in one hand, and reaching into her groin area with the other hand on several occasions, including one time when she put her hand under her leggings.

35While he found the Video to be somewhat unusual, a further search of the devices discovered that it existed in five other locations, spread amongst 2 hard drives. Out of the six copies of the Video, five were identical. The sixth copy, however, was determined to have had something changed inside the data supporting the Video, and was also attached to software called “OBS Studio”.

36OBS Studio is a free and open source cross platform which allows the user to stream or broadcast what is being played on a device’s screen.

37While all of the five copies of the Video shared the same name, the sixth one was called “Vid31watchable.mp4”.

38The Video captures JP from the waist down while she is lying on a couch in a living room. During the video, JP reaches down to her groin area at least three times. The first is very brief, and Mr. Dunnill described the other two times as “prolonged”. The camera is situated to the right of JP, and her legs are bent at the knees such that, from a side view, JP’s hand cannot be seen once it extends to her groin area. However, during one time it appears her hand is moving, and at the end of the video, JP rolls to her left hand side on the couch and slides her hand down her leggings.

39From Mr. Dunnill’s review of the Video, it appears to capture JP masturbating.

Contents of the Video

40The full Video is approximately 52 minutes in length.

41During the trial, Mr. Dunnill introduced a much shorter version of the Video in which most of the relevant acts, as described above, are shown. The shorter version of the Video which was reviewed in court was approximately 3 minutes long. In order to come to my decision, I focussed on the full Video which I reviewed several times in order to determine what was depicted.

42In my review of the Video, it appeared to be marking time by noting the hour, the minutes, and the seconds as they progressed. I have attempted to identify various times, with a description, of what was occurring in the Video. My attempt to “time stamp” events is simply an approximation, meaning the actual event may have occurred seconds before or after my identification of the time.

43At the outset of the Video, an unrelated and irrelevant clip which lasts approximately 8 minutes shows the inside of a house, presumably that of Mr. Hubbard’s, with several individuals walking around and interacting. The date stamp of this portion of the Video is 11-08-2018.

44The relevant portion of the Video is date stamped 09-22-2018, and starts at approximately 4:40 p.m. It depicts JP in a room which appears to be a living room or a family room, with JP on a couch sitting in front of a coffee table with her smartphone propped up against a glass planter located on top of the table, allowing her to watch her smartphone while eating and drinking food from Tim Horton’s.

45The Video is stamped with a logo “ezviz”, which confirms that the Video was created by a spy cam which had been set up in Mr. Hubbard’s living room. It appears to be situated on top of a desk, or a table, and overlooks the room in which JP is sitting on the couch. At the far end of the room, in the direction which the camera is pointed, there is a window, and a television which is turned on, but is not showing anything except a number of animated images cycling through on the screen. There is no obvious sound coming from the television, and all that can be heard during the Video are voices of JP and those who enter the room, and some soft music and voices which may be coming from JP’s smartphone.

46There is someone else who enters the room within the first couple of minutes, whom JP tells she is using the glass planter as a phone holder. During this time JP’s buttocks are on the couch, where she is sitting, and both feet are planted on the floor as she bends over to watch whatever is on her smartphone.

47From approximately 4:41.52 to 4:42.04, JP’s left arm reaches between her legs. While the camera angle does not specifically show her hand or her groin area – which is blocked by her right leg – it appears that JP is touching, possibly scratching, her right inner thigh.

48From 4:42.52 to 4:42.56, her hand hangs down between her legs, and at one point she touches herself between her legs – again, exactly where is obscured – while she continues to eat, drink, and watch her smartphone which is still propped up on the coffee table against the glass planter.

49At 4:44.45, both of her hands fall down between her legs.

50Following this, at various points while sitting on the couch with both feet on the floor, JP picks up her smartphone and leans back on the couch and spreads her legs such that the area of her groin is visible to the camera. All during this time, she continues to watch her smartphone.

51At 4:45.27, someone enters the room off camera, who appears to leave the room at 4:45.56 as the sound of a door opening is heard and light shines into the room onto JP. Based on this happening several times during the Video, there must be an exterior door opposite the couch which is off camera.

52The door opens again at 4:46.33 and someone comes in with others, possibly two, based on the voices which are heard. The room brightens and darkens suggesting a door opening and closing, with the brightness going away at 4:47.05 when the door closes.

53At 4:47.40, JP puts her feet up on the couch and lies there with her knees up, i.e., her legs are not fully extended but pulled up so that her knees are bent. The right side of her body is facing the camera, with her feet pointed towards the window and the television at the other end of the living room. Her smartphone is being held by both hands, and from time to time she moves around on the couch, sometimes moving her knees, sometimes extending one leg or the other.

54At 4:47.48, JP says “Huh?”, which sounds like a response to someone who is talking to her.

55At 4:48.43 JP adjusts her position on the couch, thrusting her pelvic area upwards and towards the camera location, clearly showing her groin area.

56At 4:48.45, she adjusts her position again, this time turning inwards to the couch and showing her buttocks towards the camera.

57At 4:49.10, she places her right hand under the front of her pants for a few seconds. At this time, her hand goes into her pants up to her knuckles, and then she flicks her hand up several times so that her pants are pushed upwards. JP is wearing tights, and the elastic on her waist means her pants come back down against her stomach as soon as her hand is removed.

58At 4:49.42, she pats her inner right thigh with her hand several times, and at 4:49.50, she strokes the inner right thigh with her finger.

59At 4:50.30, she turns again towards the couch, such that the camera captures her buttocks, and she remains in that position for approximately 20 seconds.

60At 4:51.37, the room brightens as if an exterior door opens and shuts off camera.

61JP continues to be engaged with her smartphone, with both hands on her phone and her legs crossed with her left foot crossed over her right knee while bouncing or wriggling her left leg at times.

62At 4:54.00, she places her smartphone on her lap and the phone images can be seen for less than a minute. On the screen appears to be a woman speaking, i.e., nothing obviously sexual is playing on JP’s smartphone.

63At 4:55.50, JP pulls the bottom of her shirt down towards her groin. At this point, her left leg is against the couch and her right foot is on the floor, with her pelvic area opened towards the ceiling.

64At 4:57.04, her hand wanders briefly to her pelvic area, with her right index finger gently stroking her inner thigh towards her groin.

65At 4:57.48 her hand touches the area between her shirt and her pants, lifting her shirt slightly and rubbing, stroking and scratching her stomach area gently. This lasts less than 10 seconds.

66At 5:00.00, her legs are both on the couch, with legs crossed and opened, with her right foot crossed over her left ankle. She continues to watch her smartphone.

67At 5:00.41, she scratches or rubs her groin area for several seconds.

68At 5:02.00, the camera frame continues to capture JP from her belly button to her feet. Her legs continue to be extended onto the couch.

69From 5:02.30 to 5:02.51, her right hand is in her groin area, rubbing or scratching gently. Because of the angle of the camera, the viewer cannot see exactly what JP is doing with her hand, but some movement of her arm is noted. When finished, her right hand returns to her smartphone.

70At 5:05.45 she scratches her stomach with her right hand, lifting her shirt slightly and then pulling it down.

71From 5:06.24 to 5:06.49, JP extends her hand between her thighs and from the movement of the fabric of her tights on her left leg, it appears she scratches her inner thigh for a few seconds, and then her hand simply rests there without any obvious movements.

72At 5:07.00, light shines on JP and then goes away, which appears to be from an exterior door located off camera opening and closing. This happens at 5:08.00 again. Presumably someone is entering and exiting the room. At 5:08.30, the door opens again. At 5:08.45, someone walks into the frame and stands in front of a desk at the right hand side of the room, remaining there for approximately 10 to 15 seconds.

73At 5:09.24 the door opens again.

74At 5:10.00 JP continues to view her smartphone with both hands on the phone, legs extended onto the couch with her knees spread out, and her pelvic area pointed to the ceiling.

75At 5:11.00 the door opens and closes.

76At 5:12.00 and 5:13.00 JP is on the couch, holding and scrolling on her smartphone with her legs in same position extended on couch. This continues to be the situation at 5:14.00, 5:15.00, 5:16.00 and 5:17.00.

77At 5:18.06, JP reaches between her legs and appears to scratch her groin for a few seconds. The view of exactly what she is doing is obstructed because of the angle of the camera, but her arm and extension of her hand to the area of her groin is clearly seen. This happens again for no more than a second at 5:18.20.

78At 5:23.53, JP rolls over towards the couch so that her buttocks area is visible. While in that position, her right hand firstly scratches the right cheek of her buttocks over her pants, and then moves under her pants in order to continue touching and/or scratching her buttocks. This entire event takes approximately 5 seconds, and at 5:24.00 she rolls back onto her back.

79The Video ends at 5:24.30, with JP on her back, viewing her smartphone while using both hands, with her left foot and knee extended on the back of the couch, with her right leg and knee resting against the coffee table located to the right of the couch.

Assessment of the Contents of the Video

80My first impression of the Video was that JP was not masturbating while watching her smartphone. This first impression remained with me throughout my several views of the Video from start to finish.

81My finding that the Video does not depict JP engaged in masturbation is based upon the following:

• the Video captures JP on a couch in a fully lit living room;

• people are coming in and out of the living room which is apparent

o by the voices heard on the Video, with verbal exchanges between them and JP,

o by actually seeing one individual enter the living room while JP is on the couch, and

o by the fact that the room gets brighter and then darker, several times, suggesting that a door located off camera, and leading to outside, was being opened and closed to facilitate individuals entering and exiting the living room area;

• there is no attempt by JP, at any point on the Video, to hide or shield whatever was playing on her smartphone;

• there are no attempts by JP to hide or shield what she was doing on the couch;

• the times JP’s hand went between her legs were for the purposes of scratching or rubbing without an obvious sexual purpose or impact; and

• while the time periods which JP’s hands were between her legs were all different, each was of a fairly short duration without any lingering.

82I therefore find it highly improbable that JP was viewing anything which might be sexually stimulating on her smartphone. It is always possible that a very young woman between the ages of 9 to 11 would be sufficiently comfortable and self confident to be viewing sexually stimulating material on a smartphone while occasionally sexually stimulating herself in a living room where individuals were walking in and out and interacting with her, without at any time trying to hide what she was doing. However, this would not be typical behaviour expected of a youth of this age who was exploring her sexuality in a very public area of her home.

83Those times when JP reached between her legs and touched herself, I find that she was merely scratching, or rubbing, or touching herself in a non-sexual manner. Accordingly, the Crown has not satisfied its onus under s. 163.1(1) (a)(i) of the Code .

Dominant Characteristic of the Video

84What remains to be determined, then, is whether s. 163.1(1) (a)(ii) of the Code applies, namely whether the dominant characteristic of the Video is the depiction, for a sexual purpose, of JP’s sexual organ or anal region.

85Referring back to Perez , I must be satisfied beyond a reasonable doubt that the dominant characteristic of the Video is the depiction of JP’s sexual organ or anal region, and that this depiction is sexual. Other factors, such as the person in the Video was under 18 years old and that Mr. Hubbard made the Video, are admitted.

86The determination of this issue rests on whether a reasonable person would see the dominant characteristic of the Video as the depiction of JP’s sexual organ or anal region. If this finding is made upon an objective and contextual assessment of the Video, then the following consideration is whether the Video would be reasonably perceived to sexually stimulate some viewers.

87My assessment of the first issue, whether the Video depicts JP’s sexual organ or anal region, leads me to conclude, based upon the Perez factors listed in para. 299 , the following:

a. The camera angle captures the entire front of JP when she is sitting on the couch, including her face, while watching her smartphone as it is propped up on the coffee table, her knees spread apart, with her right knee blocking a view of her groin for most of the time, occasionally moving to provide a clear view of her groin including when she sits back into the couch;

b. When JP is lying on the couch, the camera area captures the right side of JP from her stomach area to the end of her feet, and while most of the time her groin and buttocks are obstructed, there are times when her right leg moves to provide a clear view of her groin area, and other times when she turns inward towards the couch so that JP’s buttocks is pointed at the camera;

c. The entire time JP is lying on the couch, the upper part of her torso and her face are not visible, and the fixed camera angle is focused on her pelvic area and lower body, i.e., from her stomach to her toes; and

d. Since the camera is in a fixed location, hidden from view and operating without the knowledge of JP, there is no ability to focus or zoom in or otherwise emphasize the groin or buttocks areas of JP, but the predominant image captured on the Video is JP’s pelvic region.

88Given the nature of the contents of the Video, which shows JP, more or less alone, in a living room area watching the contents of her smartphone, the only significant “action” in the Video are the movements seen of JP. These include her stretching out on the couch and moving around on the couch, but also those times when she places her hand between her legs in her groin area, or under her shirt touching the lower portion of her stomach or under her pants touching her buttocks.

89The camera frame is not focused on JP’s face, or what she is doing on her smartphone. The Video does not capture any activity of a family member that would be worth keeping so that it could be reviewed in the future or showed to others as a representation of a fond memory or activity from the past. JP’s upper body and face are, for the most part, not included in the Video, making it impersonal and without any characteristics which would make this a sentimental “home movie” to preserve for future family audiences.

90The Video clearly captures JP in the foreground, closest to the camera, primarily focused on the portion of her body from her belly button to her toes. Accordingly, the dominant characteristic of the Video is the depiction of JP’s sexual organs and anal region.

91Still following the direction in Perez , I must then determine if this depiction is likely to stimulate sexual interest in some viewers.

92As already noted, JP is fully clothed throughout the Video. While the body positioning of JP is not meant to be sexual – again, the Video was taken without JP knowing and she is therefore not making any efforts to act or appear “sexual” – the actions of JP throughout the Video clearly depict sexual stimulation. While I have found that JP was not masturbating in the Video, or sexually stimulating herself, there are a number of times when she appears to be touching, rubbing, or caressing her inner thighs and groin area, as well as her buttocks. These actions are associated with sexual activities, and clearly support Mr. Dunnill’s belief that JP’s conduct in the Video consisted of sexual touching and stimulation.

93Finally, it was admitted during submissions that this Video was important to Mr. Hubbard. 6 copies of the Video were found, 5 of which were identical, and one which was renamed “Vid31watchable.mp4” and attached to a streaming platform called OBS Studio. The use of the word “watchable” by Mr. Hubbard when he named the sixth copy of the Video may not mean anything, but it is certainly open to infer that this name, when associated with a streaming platform, meant that the Video was intended to be watched.

94The Video cannot be said to be akin to a nostalgic home movie kept by Mr. Hubbard to provide heartwarming memories of JP’s youth. Aside from the few minutes at the beginning of the Video, the viewer would not know who was shown on the couch in the Video. For the most part, the predominant theme within the Video is a young female lying on a couch, playing on her smartphone while touching herself in her groin and buttocks areas. It is therefore a reasonable inference that the 6 copies of the Video, an important Video for Mr. Hubbard, were not to ensure that the warm memory of JP was preserved so he could revisit this in the future. There is nothing remarkable in the Video that it could be considered a keepsake, or sentimental. There is no other reasonable inference other than it meant something else to Mr. Hubbard.

Contextual Assessment of the Video

95In this regard, I acknowledge the position advanced by counsel for Mr. Hubbard, Mr. Habjan, regarding the overall context in which this Video was found. In particular, the questions on cross examination of Mr. Dunnill established that he did not review the contents of other videos or photos or files which were stored in the same locations where the 6 copies of the Video were saved and stored.

96Accordingly, it was submitted by the Defence that the Video cannot be viewed and assessed within a vacuum. A full contextual assessment is necessary in order to determine what it is, and viewing the 3 minute clip which contained the salient portions of the Video, instead of the entire Video, would not result in a proper assessment of the nature of the Video. In undertaking this analysis, Mr. Habjan urged me to consider that no evidence was led as to the nature of the other electronic files which were grouped with each copy of the Video, and that Mr. Dunnill was unable to say whether the surrounding files to each copy of the Video were problematic. Absent this information, innocent explanations for the Video could exist which are unable to be put forth, given the limited examination of electronic files which were not identified as child pornography.

97Without the ability to consider the surrounding context applicable to each location where the copies of the Video were found, it was submitted that reasonable doubt must exist within any attempt to characterize the nature of the Video within an objective analysis.

98The case of R. v. McSween , 2020 ONCA 343 , provides some assistance in considering the application of context to the analysis required. At paras. 81 and 82, Trotter J.A. disagreed with the approach of the trial judge who found that because only 36 out of more than 4,000 pages of text messages were sexual in nature, the 36 pages could not be found to have a dominant characteristic of the entire body of text messages such that they would fall within the ambit of s. 163.1(1) (c) of the Criminal Code . Instead,

[t]he trial judge should have focused on the characteristics of the impugned messages, rather than the entirety of the correspondence between the [parties] . . . .

The error in this approach is demonstrated by reference to visual representations of child pornography. The trial judge’s reasoning would mean that an image that is explicitly child pornography may lose this characteristic if it were to be interspersed with non-pornographic images. That is, if a clearly sexualized photo of a child is found in an otherwise typical family photo album, the sexualized photo would somehow lose its attributes as child pornography because it forms such a small part of the collection. An interpretation of s. 163.1 that would so easily place child pornography beyond the reach of the section, through mere camouflage or disguise, would clearly frustrate Parliament’s intent.

99I take the point that a photo of a nude child in a bathtub which is found in a family’s photo album could attract a contextual assessment suggesting that such an image would not be caught within s. 163.1. Similarly, a series of unrelated photos of unrelated children in bathtubs bound together in an album might result in a different contextual assessment. However, that background is not integral to the characterization of the images, and certainly other factual elements may exist to provide a more accurate and reliable objective analysis in determining whether s. 163.1 is engaged.

Conclusion

100My assessment of the evidence leads me to conclude that the electronic devices – within which 6 copies of the Video were stored – contained a vast collection of surreptitious women and children, including pornography which was labelled as incestuous. In addition to child pornography, this collection exceeded 550 images. These were not neatly organized into file folders. Rather, Mr. Dunnill’s evidence was clear that their locations were scattered throughout the hard drives which were seized and searched.

101I do not have the evidence relating to what other pictures were in the “photo albums”, or electronic files, in which the copies of the Video were stored. But considering the broader context of what was found in the hard drives, and the fact that 6 copies of the Video were made and stored away for safekeeping, the sexualized nature of the Video is apparent.

102The context in which this Video was found, the various locations where it was stored, and the attempts of Mr. Hubbard to save it 6 times, one as a “watchable” copy, all nestled within a much larger collection of child pornography, lead me to conclude that it was kept and maintained by Mr. Hubbard because it is likely to stimulate a sexual interest in some viewers.

103Based upon these findings, I have determined that the Video meets the definition of child pornography and child sexual abuse and exploitation material as set out in s. 163.1(1) (a)(ii) of the Code , and the Crown has established beyond a reasonable doubt that between January 1, 2018 and December 31, 2019, in making and retaining the Video, Mr. Hubbard is guilty of making child pornography contrary to s. 163.1(2) of the Code .

104This matter is adjourned to the next Assignment Court set for January 26, 2026 at 1:30 p.m. via Zoom to be spoken to and/or to set up a date in order to discuss or receive submissions on sentencing for this matter, as well as Counts 1, 4 and 6 on the Indictment to which Mr. Hubbard has pleaded guilty.

The Hon. Mr. Justice S.J. Wojciechowski

Footnotes

1. 1[1] On October 10, 2025, t he term “child pornography” will be replaced by the term “child sexual abuse and exploitation material” by virtue of Bill C-291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) , S.O. 2024, c. 23 . Both terms were used interchangeably during the course of this trial.