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Criminal - Child Pornography. R. v. Pulford
In R. v. Pulford (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal of an acquittal of "possession of child pornography contrary to s. 163.1(4) of the Criminal Code", emanating from "a Garofoli application where the search warrant authorizing the search of the respondent’s home was found to be unlawfully obtained".
Here the court considers what can constitute 'child pornography':Issue 2: Did the reviewing judge make reviewable errors of fact and law in finding that the affiant of the ITO gave misleading descriptions of the subject videos, and that those videos could not form reasonable and probable grounds to find that the offences charged had been committed?
[29] Although deference is owed to a reviewing judge on her assessment of the record and her disposition of the s. 8 application, an appellate court may interfere where it finds an error of law, a misapprehension of the evidence, or a failure to consider relevant evidence: Sadikov, at para. 89.
[30] In this case, the affiant did not include the actual videos in the ITO, but relied only on his description of their contents and his analysis of whether they constituted child pornography. However, the videos were provided to the reviewing judge and to this court on the appeal for the court’s own review, which we have done.
[31] Having reviewed the videos, I disagree with and reject the findings made by the reviewing judge that the affiant of the ITO provided a misleading description of their contents and that they do not and cannot provide evidence of the commission of the offences charged. To the extent that the affiant omitted any descriptions of the contents of the videos, he omitted details that would have contributed to the conclusion that they could constitute child pornography. I conclude that the reviewing judge misapprehended the evidence contained in the videos and erred in law in concluding that they could not amount to child pornography.
[32] First, the longer video opens focused on a long line of naked young girls seen from the back with bare buttocks. Second, the girls, who appear to be pubescent or pre-pubescent, walk around a swimming pool on a sunny day. They are all holding numbered cards in their hands. As the camera focuses on their faces, they smile and laugh for the camera. Then the camera focuses on their breasts, one young woman at a time. Then it pans out, and while they walk it shows them fully exposed including their breasts and pubic areas. There are also depictions of a photographer videoing the girls.
[33] From this description, it is clear that the affiant was correct to describe what was occurring as a “pageant” where the girls’ bodies were being judged. There is no issue that the camera zoomed in on the girls’ breasts and focused as well on their pubic areas. While it was an error for the affiant to refer to the pubic areas as “vaginas,” in the context of the description of these videos, it would have been clear to the justice of the peace that the girls were being photographed standing and walking and that the focus being described was on their pubic areas. To the extent that the affiant did not mention that there were people swimming in the pool, that factor does not detract from the aspects of the film, as well as the names under which it was posted on the internet, that form the basis for the conclusion that the videos are child pornography.
[34] Child pornography is defined in s. 163.1(1)(a)(ii) of the Criminal Code as follows:(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
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(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; [35] There was no basis for the reviewing judge to find that the affiant was misleading in describing the contents of the videos or in his conclusion that they constituted child pornography. They are not mere depictions of nudity in a benign setting. They focus on the breasts of young girls as well as their pubic areas and buttocks in a manner that can have no purpose other than the sexualization of their bodies. The fact that it is in the context of a pageant or contest further substantiates that purpose. . R. v. Beauvais
In R. v. Beauvais (Ont CA, 2023) the Court of Appeal considered a circumstantial [Villaroman] evidence issue in a child pornography conviction appeal, here the burden on the Crown to negate plausible alternative non-guilt factual theories:[23] Constable Fasullo testified that the scan he conducted on the laptop exposed a virus which could “[execute] commands from an attacker”. Although Constable Fasullo did not testify that the virus in fact allowed a third-party attacker to download child pornography onto the laptop, his evidence was nevertheless sufficient to move this inference from the realm of pure speculation to that of a reasonable possibility. As the Supreme Court cautioned in Villaroman, at para. 35, “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts”. It was therefore not incumbent on the appellant to adduce further evidence to positively support this inference. The burden instead rested with the Crown to negate it.
[24] Had Constable Fasullo simply testified to the presence of a virus, and nothing more, the Crown might not have had any further work to do, but his description of the virus in this case as permitting the attacker to execute commands provided an air of reality to the suggestion that someone may have used the appellant’s computer remotely to access and download child pornography. This inference was not speculative but grounded in the expert’s description of the possibility that this virus could provide an external user with the power to execute commands on the computer. This evidence placed a tactical obligation on the Crown to present some evidence to negate the possibility that a third-party attacker was responsible for downloading the child pornography, failing which this evidence could potentially create a reasonable doubt. . R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal considered the dangerous offender element of 'serious personal injury offences' ('SPIOs'), here in the context of child pornography:(2) Child Pornography Offences as SPIOs: Previous Decisions
[68] Only a handful of cases have addressed the specific issue on appeal – whether the offences of possessing, accessing, and making available child pornography constitute SPIOs. It is accepted that they are not categorically SPIOs. On the other hand, these cases support the conclusion that, depending on the circumstances, they are capable of being SPIOs. It is helpful to review some of this jurisprudence.
[69] In R. v. Patterson, 2018 ONSC 5395, the Crown applied under s. 752.1 for an assessment order in relation to charges of possession and accessing child pornography. The Crown argued that, as a matter of law, any conviction for either offence would necessarily constitute an SPIO: “[E]very image represents violence towards children.” Bawden J. rejected this sweeping submission, along with the Crown’s further submission that everyone who possesses or accesses child pornography is a party to the making of that child pornography. The Crown does not make either submission on this appeal.
[70] Turning his attention to Steele, Bawden J. considered the manner in which Mr. Patterson committed his offences. Bawden J. summarized the evidence of the accused’s offending and referred to the victim impact statement of the mother of a 12-year-old boy whose image figured prominently on a website frequented by Mr. Patterson, and whose image was in Mr. Patterson’s collection. Bawden J. held, at para. 30: “[T]he statement establishe[d] a foundation for a finding that the maker of the images inflicted severe damage to [this child].” He ultimately concluded, however, that Mr. Patterson’s offences were not SPIOs, at para. 32:Mr. Patterson was a low end consumer of child pornography. There is no evidence that he did anything to encourage the creation of child pornography apart from committing the essential elements of his own offences. The two images that he possessed did not depict a sexual assault on either of the subjects. One of the images that he accessed (the boy with ejaculate on his tongue) did depict evidence of a sexual assault but on the scale of such images, this was on the less serious end. The videos showing sexual activity between prepubescent boys are clearly the most disturbing images but they were few in number and of limited visual quality. There is no evidence that Mr. Patterson ever attempted to take possession of them. [71] Bawden J. declined to make an assessment order for the purposes of a dangerous offender application.
[72] The approach in Patterson was followed in R. v. Ewing, 2021 ONCJ 273, a case also involving the offences of possessing and accessing child pornography. The SPIO issue arose at the s. 752.1 application stage. The sentencing judge, Libman J., described the collection amassed by Mr. Ewing, which included images of young children, some of whom have been identified by international police agencies. The Crown also tendered a victim impact statement of one of the individuals in Mr. Ewing’s collection. She recounted the trauma she continues to experience 20 years after the abuse at the hands of her father, which was recorded and shared on the internet.
[73] Libman J. distinguished Patterson, holding that Mr. Ewing was not a “low end consumer”: para. 80. He placed great reliance on the victim impact statement of the child whose image was in the collection. Libman J. also relied on the same community impact statements filed in this case and found that there were reasonable grounds to believe that Mr. Ewing had committed an SPIO. In relation to the identified victim, Libman J. said the following, at para. 89:In the mind of [the identified victim], and other survivors of child sexual abuse who live in constant dread of their images being viewed by others, and especially of being recognized, there is no meaningful distinction between the maker of child pornography, or the viewer of same. They each inflict severe psychological damage on such victims, albeit at different times and in different ways, every time the image is viewed. The publisher may play the role of principal offender; the audience’s role as secondary offender. The performance may be “pay for view” or not. However, they remain offenders alike; they are all patrons of the same genre of harm. [74] Libman J. ordered an assessment under s. 752.1.
[75] In R. v. Brouillard, 2020 QCCS 604, the accused was convicted of accessing, possessing, and making available child pornography. The sentencing judge, Ouellet J.S.C., focused on the accused’s behaviour in sharing child pornography online, which included providing others with codes and/or passwords necessary to access file directories.
[76] Ouellet J.S.C. concluded that, “at a minimum”, making available child pornography is conduct that is likely to inflict severe psychological damage on another person: at para. 31. A key factor was that the faces of the victims were visible, such that “they can recognize themselves, be recognized, and know that they will be recognized, for all time, as long as these images are circulating on the Internet”: at para. 32. He rested this conclusion on statements of the Supreme Court about child pornography, discussed above, as well as other cases about the indelible nature of images posted online. He found that making child pornography available qualified it as an SPIO.
[77] Lastly, I refer to R. v. Millie, 2021 SKQB 281, a case involving the offences of making available, accessing, and possessing child pornography.
[78] Applying Steele, Dawson J. accepted that the essential elements of the three offences do not automatically qualify as SPIOs: para. 76. Referencing Sharpe, Dawson J. accepted that there is a rational connection between accessing, possessing, and making available child pornography and the sexual exploitation of children, but held that “the SPIO definition requires something more than mere speculation or an abstracted rational connection”: para. 79.
[79] Mr. Millie was in possession of and had access to 90,708 images of child pornography, of which 13,289 were unique. There were also 131 unique videos in his collection. The children’s faces were visible in some of the images Mr. Millie uploaded to the internet.
[80] After reproducing the passages from Friesen and S.(J.) quoted above, Dawson J. held that “the court must be satisfied that the offender’s conduct contributed in some non-zero measure to the severe psychological damage to a victim of the child pornography in question. In other words, the connection or link between the offender’s conduct and a victim’s identifiable severe psychological damage must be established”: para. 92. She found that, although the identifiable victims in Mr. Millie’s collection did not directly attribute the harms they suffered to Mr. Millie’s conduct, this did not bar a finding that he caused their severe psychological damage. The perpetual and acute emotional distress the victims described in their victim impact statements was not specific to Mr. Millie because the statements were prepared before the date of his offences. However, Dawson J. concluded:[114] All three victims identify significant, prolonged and continuing severe psychological damage from the knowledge that individuals download and possess the child pornographic images of them. Even though the victims did not relate their psychological damage to Mr. Millie specifically, or individually, I am satisfied that there is established from the Victim Impact Statements … a clear link between the knowledge of the victims that persons possess and view their images and each of their psychological damage.
[115] Here, Mr. Millie’s possession of the pornography, which contains the victims’ images, has the effect of inflicting severe psychological harm, as the victims are aware that they have been victimized in this way and revictimized by the ongoing process of access and/or possession of the images.
[116] I am satisfied on the evidence, that Mr. Millie’s possession of the said pornography is inflicting or likely to inflict severe psychological damage on another person.
[117] I find that the circumstances of this case mandate a finding that the possession of child pornography contrary to s. 163.1(4), committed by James Millie in the factual circumstances, of this case satisfies the definition of an SPIO for the purposes of s. 752 of the Criminal Code. [81] Together, these cases apply Steele and demonstrate a common approach to the determination of whether possessing, accessing, and making available child pornography are SPIOs – a case-by-case consideration of the circumstances in which the offences were committed in light of s. 752(a)(ii). None of these cases categorically preclude these offences from being qualified as such.
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[93] Applied to the context of child pornography, the initial harm lies in the sexual assault of the infant or child. Added to this is the related harm of recording this abuse. This harm is different in kind, but still an extension of the sexual abuse. Similarly, the sharing of recordings with others furthers or perpetuates the harm caused by the initial recording and underlying abuse. Accessing and possessing child pornography fulfills the objective of the person who shares it or makes it available. Indeed, this market for child pornography, whether for purchase, trade or otherwise, may motivate those who make it available, and in turn, those who create it. Accessing and possessing child pornography may further harm the children depicted in the child pornography where they become aware that their image has been accessed or possessed. Thus, cognizable harm has the potential to extend beyond the initial abuse involved in creating child pornography. It may not be the same type of harm at each stage, but it need not be to remain within the ambit of conduct that inflicts or is likely to inflict severe psychological damage. The court continues at paras 96-107 to expand this law in light of the current case facts.
. R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal considered the law of child pornography:F. CHILD PORNOGRAPHY
(1) Child Pornography and Harm
[57] As a precursor to this analysis, it is helpful to explore how the courts have considered the harms caused by child pornography offences, and the psychological impact of this pernicious criminal conduct on the victims.
[58] Little needs to be said about the obvious harm of producing child pornography. In any scenario involving the making or production of child pornography involving a real child, whether coming into physical contact with the child or not, the offender is involved in the direct sexual abuse of a child. This conduct carries a maximum sentence of 14 years’ imprisonment (s. 163.1(2)) and is likely to be accompanied by liability for other sexual offences against children.
[59] The production of child pornography is the first step in a succession of serious harms. In the leading case of R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court was unanimous in upholding the constitutional validity of s. 163.1(4) of the Criminal Code (possession of child pornography). The Court recognized the serious harms associated with possession of child pornography. As McLachlin C.J. wrote, at para. 28:This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography. Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. [Emphasis added.] [60] When addressing the harm experienced by a child whose sexual abuse is recorded, McLachlin C.J. said, at para. 92, “the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone”: see also R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 62.
[61] In separate reasons, L’Heureux-Dubé J. (Gonthier and Bastarache JJ., concurring) made the following observations about the impact on the children whose sexual abuse is recorded (at paras. 164 and 169):In addition to the types of harm discussed above, child pornography creates a risk of harm that flows from the possibility of its dissemination. If disseminated, child pornography involving real people immediately violates the privacy rights of those depicted, causing them additional humiliation. While attitudinal harm is not dependent on dissemination, the risk that pornographic representations may be disseminated creates a heightened risk of attitudinal harm.
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Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation. [Emphasis added.] [62] In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the Court heard a sentence appeal of an offender who recorded the sexual abuse of his daughter and distributed the images on the internet. In restoring the sentence of the trial judge (that had been reduced by the Court of Appeal), LeBel J. said, at para. 28:Finally, I note that L.M. disseminated his pornography around the world over the Internet. The use of this medium can have serious consequences for a victim. Once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world. R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday. [Emphasis added.] [63] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 114, Deschamps J. (dissenting, but not on this point) observed that the internet has “accelerated the proliferation of child pornography”.
[64] The harms associated with the distribution and consumption of child pornography were also mentioned in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, a sentencing case involving sexual interference with a young child (Criminal Code, s. 151), and the attempted extortion of the child’s mother (s. 346(1)). Wagner C.J. and Rowe J. articulated the sentencing principles to be applied in cases involving the sexual abuse of children. They discussed how “new technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children”: at para. 47. Echoing the words of Deschamps J. in Morelli, Wagner C.J. and Rowe J. made the following observation, at para. 48:Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time. [Citations omitted.] [65] This court has often stated that the ascendant sentencing principles in child pornography cases are denunciation and deterrence. It has recognized the harm caused to children by offences that extend beyond the creation of child pornography – i.e., possessing, accessing, and making available. For instance, in R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, Strathy C.J.O. said, at para. 120:Sadistic sexual assault of twin babies and a very young child by a trusted caregiver is amongst the most grievous crimes imaginable. To record such abuse and trade it on the Internet compounds the injury to the victims. All the more so when the offender does so for the stated purpose of attaining notoriety and “respect” so that others will share their own sadistic abuse of children. And the more horrific the abuse, the more it is valued in that community. The appellant’s violation of his victims is repeated every time the images are viewed on the Internet, where they cannot be erased and will likely reside in perpetuity. And, as the sentencing judge observed, the victims, particularly S, whose face is shown, may be further traumatized by the knowledge that these images and films could surface in their personal lives at any time. [Emphasis added.] [66] Similarly, in R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, Hoy A.C.J.O. said, at para. 22:Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, [2012] A.J. No. 481, 2012 ABCA 148, at para. 29, “possession of child pornography is itself child sexual abuse”. The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children. See also R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at paras. 21-22 and R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28.
[67] From this brief review of the jurisprudence, there can be no doubt of the myriad harms associated with child pornography – not just in its making, but also in its proliferation, especially on the internet, and by those who access or possess it. These cases harmonize with the experiences described in the victim impact statements discussed earlier in these reasons. The question is whether any or all of these related offences – making available, possessing and accessing child pornography – are capable of meeting the requirements of SPIOs.
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