His Majesty the King - v. -, 2024 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2024 SKPC 7 Date: January 22, 2024 Information: 991120398 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Rhett Holynski Appearing: L.E. Morelli For the Crown P.M. McDougall For the Accused JUDGMENT Q.D.

AGNEW , J [ 1 ] Rhett Holynski is charged that he did, at Saskatoon, Saskatchewan: 1. between April 1, 2018 and December 31, 2019, have in his possession child pornography, namely images of AB, contrary to s. 163.1(4) of the Criminal Code ; 2. between May 26, 2017 and December 31, 2019, have in his possession child pornography, namely images of EF, contrary to s. 163.1(4) of the Criminal Code ; 3. between April 1, 2018 and December 31, 2019, distribute child pornography, namely images of EF, contrary to s. 163.1(3) of the Criminal Code ;

4. between April 1, 2018 and December 31, 2019, lure AB to share nude pictures of herself, contrary to s. 172.1(1) (

a) of the Criminal Code ; 5. between May 26, 2017 and December 31, 2019, lure EF to share nude pictures of herself, contrary to s. 172.1(1) (

a) of the Criminal Code ; 6. between April 1, 2018 and December 31, 2019, commit a sexual assault on AB, contrary to s. 271 of the Criminal Code ; 7. between April 1, 2018 and October 31, 2018, commit a sexual assault on EF, contrary to s. 271 of the Criminal Code . CREDIBILITY [ 2 ] There were difficulties with the evidence of both AB and the accused. I will offer some examples of each. None of these examples are, by themselves, definitive: all of them could well have explanations. The cumulative effect is what is more important to the witnesses’ respective credibility. Regarding AB:

a) She testified that she had “blocked out” a lot of her memories of these events. She made this comment both after viewing her video statement to police, and again at the end of her testimony in-chief. She stated that she might have a memory issue;

b) She seemed to have a clear recollection of some matters, but even there, her memory was not always as firm as it initially appeared. In her examination in-chief, for example, she testified that the accused asked her multiple times for nude photographs, but that if he asked for anything “too graphic”, she would refuse; she then immediately stated that she did not recall if he had, in fact, ever asked for anything too graphic;

c) There was a significant discrepancy between her recollection of how Sergeant Kiesman obtained certain photographs from her phone, and how he described that event. I am inclined to accept his evidence in this regard, as it was clearer and more coherent, it made more sense as a practical matter of how things might have occurred, and this quite literally was his job at the time - he is more likely to have paid attention to such procedural details than AB might have done. By contrast, it is not unreasonable to believe that she might not have been focused on exactly what process was used to obtain the photographs from her phone. Still, the discrepancy is notable;

d) She testified that she had kissed the accused. She could not recall whether she had done so more than once. Although it is not at all unreasonable for a person not to recall how many times they had kissed another, it would seem that there are likely three categories of response: “I have never kissed that person”; “I kissed that person once and never again”; and “I have kissed that person more than once”. AB testified that she had “probably” kissed the accused more than once and, in discussing whether or not she had actually ever kissed the accused, said, “I think so”.

This does not seem like something which one would likely be uncertain about, particularly as she also testified to much more intimate touching than simply kissing with the accused;

e) When describing the accused touching her breasts in a car against her wishes, she was not able to recall whether he touched her over or under her shirt, was unsure about various details, and began her testimony on this subject with, “I don’t know what happened”. It is not uncommon for witnesses not to be able to recall details of events, particularly ones that they found traumatic; but it can still raise issues with respect to the credibility of their testimony; and

f) With respect to the Coke bottle incident (see below), in her statement to police AB stated that she was not sure where it happened, but that she thought it was while she was at a hot tub. By the time of her testimony in court, she appeared to be much more certain, and testified that the incident did in fact occur at a hot tub party.

She first testified that this was at T’s home; in cross-examination, she stated that she believed it was at C’s parents’ home; then she believed it might have been at T’s home; then she didn’t recall if T had a hot tub; then, immediately after, she was “pretty sure” it was at T’s, and said that she thought that T had a hot tub. It might have occurred anywhere from 2016 to 2018, although she was not able to indicate why she thought it occurred within that range. Her recollection of the event was extremely uncertain.

In addition, she first told the police that this assault was by the accused attempting to put his fingers inside her; it was only later that it changed to being about a Coke bottle. She testified that she thought the former story was less humiliating to tell. Regarding the accused:

a) It was clear that Air Cadets was a very important organization to him. He joined at age 12, and remained until he was so old that he was no longer eligible. He attended weekly meetings, and of the two out-of-town camps held annually, he attended at least one but “more often than not” both each year. Despite this, he was incorrect by two years about the year he commenced Cadets, and was also wrong about the rank he held when he left Cadets;

b) In his denial that he had sexually assaulted EF, he stated that he would not have attempted to touch her because he was of a higher rank than she was. He also, however, stated in his police interview that he did not know what rank she was; he eventually agreed that he did in fact know that she was of a lower rank than he was;

c) He stated that he loved AB “as a sister”, but also that he accepted oral sex from her in exchange for rides in his car;

d) He testified in court that he never touched or smacked AB’s buttocks; but in his police interview, he stated that she would do so to him and that he would reciprocate;

e) He testified that he had never sent any photographs of himself to AB. He then acknowledged that after AB sent him her photographs, he sent a photograph to her of himself naked, hiding his penis; and

f) According to the accused, he stopped seeing AB in 2019 because she filed the current complaint against him. However, he had noknowledge of the complaint until 2020. [3] AB did not appear disingenuous, nor did she seem to be attempting to avoid unflattering information: in fact, she was quitecandid about some facts which she likely would have preferred to have kept to herself. Her recollection was clearly imperfect, however. [4] Mr.

Holynski had problems with memory in two ways: first, he genuinely seems to have had problems with rememberingcertain things; second, he clearly had difficulty remembering answers he had previously given, and keeping his new answers consistentwith his old answers. [5] I found EF to be much more credible than either AB or the accused. Her testimony did not contain any more inconsistenciesthan might be expected from any witness and her recollection appeared to be neither greater nor less depending on what was beingasked.

She was open about issues that she would likely have preferred not to discuss, including ones involving school and mental health. [6] I remind myself, however, that this is not a credibility contest between the accused and the Crown’s witnesses; rather, I mustdecide whether to accept any, some or all of any witness’ evidence, and then determine whether the evidence that I accept proves guiltbeyond a reasonable doubt.

FACTS [7] At all material times, both AB and EF were under 18 years old and were still under that age when they gave recordedinterviews to police about these events. [8] The accused and AB were good friends for several years, despite him being five years older than her. They spent timetogether several times a week over that period. She was about 14 when they first met. They did not ever attend school together, as hegraduated from Grade 12 before she entered Grade 9. The accused, AB and EF were all in Air Cadets, with their times overlappingsomewhat, but not necessarily in the same unit.

AB and EF knew each other there, although they were not close. EF only met theaccused on two occasions, both in Air Cadets. [9] AB testified that, at the accused’s request, she sent to him via the social media software Snapchat the photographs identifiedbelow as “AB photographs”. She also testified that she had seen the photographs identified below as “EF photographs” but believed thatthey had been on the accused’s phone, or perhaps had been posted by the accused in their mutual chat on Snapchat.

EF testified that, atthe accused’s request, she had sent those photographs to him and had received notification through the Snapchat app that he hadscreenshotted them. She did not ever send them to AB. Sgt. Kiesman found both the AB photographs and the EF photographs on AB’sphone. [10] Mr. Holynski testified during the trial. He acknowledged that he had texted both complainants requesting nude photos ofthem, although according to him he deliberately waited until they were 16 before so doing.

Although I do not believe him on this point,it is immaterial since, despite his apparent belief to the contrary, there is no legal significance to that age in the context of these charges. Based on his evidence as well as that of AB and EF, I accept that he texted them to request nude photos of them. He acknowledged thathe received AB’s photographs but claimed that it was because she wanted his opinion on them in order to send them to someone else. Again, although I do not accept his evidence in this regard, it has no bearing on the outcome of these charges.

He acknowledgedreceiving from EF the photographs listed in these reasons as “EF photographs”, except for 0023 and 0024. [11] I find that the accused is mistaken in his statement that he did not receive 0023 and 0024. I accept the evidence of EF in thisregard, that she sent him all of the EF photographs. I also find that the accused provided all of the EF photographs to AB. All of the ABand EF photographs were found by police on AB’s phone.

There is simply no explanation on the evidence for them to be there, otherthan because the accused made EF’s photographs available to AB, whether by sending them to her directly or by posting them to theirchat on Snapchat. As AB had all of the EF photographs, including 0023 and 0024, and I accept that they did not go to AB directly fromEF but rather from the accused, it follows that he in fact had all of them, even if he does not recall two of them now. SEXUAL ASSAULT: AB [12] AB testified regarding two allegations of sexual assault.

On one occasion, she testified, she was lying on her back in a fieldnear their friends when Mr. Holynski came over and lay down on top of her. She objected and pushed him off, and the encounter ended. Mr. Holynski denied the event. I note that even on AB’s evidence, there is no violation of AB’s sexual integrity, nor is there any otherevidence that the assault was of a sexual nature, as required for a conviction for sexual assault (R v Chase, (SCC),[1987] 2 SCR 293). The Crown urged me, if I found that the requirements for sexual assault were not met, to convict Mr.

Holynski ofthe lesser included offence of common assault instead. I decline to do so. AB’s recollection of this event is simply too vague anduncertain for me to be able to conclude beyond a reasonable doubt that it occurred in the manner she described, and I am left with areasonable doubt that an assault occurred. [13] On the second occasion, AB testified, Mr. Holynski attempted to force a Coke bottle into her vagina. Again, he denies it. Although AB’s evidence of this event was more detailed than it was regarding the “lying on top” incident, it was unfortunately notconsistent.

I have referred to these inconsistencies above, in my general remarks regarding her credibility. Given these problems, I amnot satisfied beyond a reasonable doubt that the incident happened as she described. I suspect that something like what she describedoccurred in some manner, but the evidence is simply not strong enough to provide proof beyond a reasonable doubt. SEXUAL ASSAULT: EF [14] EF described a sexual assault by the accused against her as well. She testified that it took place at an Air Cadet camp, whenshe was attempting to put up a shelter.

In her testimony at trial, she stated that he touched her “bum” with a slow, sliding motion thatcupped her buttock - not just a brushing motion. However, in her earlier statement to police, given roughly two and a half years beforethe trial, she stated at one point that he touched her “butt and legs and waist and whatever he could get to”; later in that statement, when

asked if he had touched anything other than her bum, she replied “no”. Mr. Holynski denies any such touching. In light of the various discrepancies between her descriptions of the event, including the discrepancies within her video statement, I am left with some doubt with respect to this event. I believe it occurred, but I do not believe it beyond a reasonable doubt. LURING [ 15 ] Mr. Holynski is charged that he did “lure [each of AB and EF, respectively] to share nude pictures of her, contrary to s. 172.1(1) (a)”. In a sense, referring to this offence as “luring” on the facts of this case is a misnomer. The applicable portion of the offence definition is: 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection . . . 163.1 . . . [ 16 ] Thus, for present purposes the offence is simply communicating by telecommunication with someone under 18 for the purposes of facilitating commission of a child pornography offence (s. 163.1). “Luring”, as that word might normally be used, is not required; all that is needed is communicating with someone under 18 via, for example, telephone or a messaging app for the purpose of something which would constitute a child pornography offence. [ 17 ] The evidence is clear from both AB and EF that the accused contacted them via Snapchat to request nude photos of them.

Mr. Holynski himself admitted to having done so and testified that he believed they were each 16 years old when he did so. Whether or not I accept that statement is irrelevant: they were in fact under 18, and he clearly believed that they were. This charge does not require that the accused actually receive child pornography as a result of the communication: simply requesting it is sufficient.

As a result, the luring charges are made out with respect to both AB and EF. [ 18 ] Defence very strongly took the position that I ought not to convict the accused, on the basis essentially that this sort of conduct is very normal for persons of the ages at the time of AB, EF and Mr. Holynski; that, in essence, “sexting” has become normal for teenagers and ought not to be criminalized. It may be that defence is correct about how widespread this behaviour is, but I have no evidence of it, and it is not something of which judicial notice can be taken.

It may be that s. 172.1 infringes on such persons’ freedom of expression, but I have no Charter notice before me which might provide a gateway into such an argument. In the absence of both a Charter argument and evidence on which it is founded, I have no option but to convict notwithstanding the passionate arguments of defence counsel. POSSESSION OF CHILD PORNOGRAPHY [ 19 ] I raised with counsel during argument a question as to whether or not all of the photographs of AB and EF constituted child pornography.

The depictions in the present case are all photographs and are all of a single person not engaged in overt sexual activity. As such, the test for whether or not they are child pornography is set out in s. 163.1(1)(a)(ii): “[a photograph] 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”. [ 20 ] The

section thus has a multi-stage test: 1. is the person depicted under the age of 18 years? 2. does the photograph depict a sexual organ or the anal region of that person? 3. is the depiction of the sexual organ or anal region the dominant characteristic of the photograph? 4. is the depiction of the sexual organ or anal region for a sexual purpose? [ 21 ] The Supreme Court of Canada made the necessity of this step-by-step analysis explicit in R v Sharpe , 2001 SCC 2 at paras 37- 53 , 194 DLR (4th) 1 [ Sharpe ]. [ 22 ] With respect to both AB and EF, they were under 18 when the photographs were taken.

I am satisfied from the evidence that both the subject of each photograph, that is AB and EF respectively, intended them for a sexual purpose, and that the accused received and kept them for that purpose. In each case, the dominant characteristic of the photograph is clear. The only question remaining is whether each photograph depicts a sexual organ or the anal region of its subject. [ 23 ] There are 18 photographs of AB and eight photographs of EF. There is a significant issue as to which of these photographs constitutes child pornography. I will list each photograph with a

summary of its file number from the trial exhibit and give a brief description of what it shows. [ 24 ] AB photographs: 0011 - AB is seen from the front, kneeling and facing the camera. She is wearing a full-coverage opaque bra and shorts. 0012 - this photograph is taken from slightly behind AB. Her torso is visible from approximately the armpit to the bottom of the buttocks. She is wearing a top which fully covers her down to her underwear. She is wearing a thong. The material of the thong disappears between the buttocks.

The photograph is taken at roughly a 30-degree angle off from straight on the side, such that all of the outside of the left buttock is visible and part of the inside of the right. 0014 - this photograph shows AB’s front from the neck to the bottom of her breasts, below which is either clothing or bedding. She is not wearing any clothing, but her breasts are covered by her hand such that almost all of one breast and about half of the other is covered. Neither nipple is visible.

0015 - AB is seen in a mirror, showing her front from her knees to the top of her head. She is wearing underwear and is covering her bare breasts with her hand in a manner almost identical to 0014. 0016 - similar to 0012, this photograph is taken from the side and shows most of the side of one buttock but only a small amount of the other.

Once again, AB is wearing a thong. 0017 - similar to 0012, once again wearing a thong, but with the camera rotated further behind AB so that more of the further buttock can be seen. 0029 - similar to 0012. 0030 - similar to 0012. 0031 - this photograph is taken from a similar angle to 0012, but AB is wearing underwear which covers more of her buttocks, nearly to the bottom and sides of each. 0032 - similar to 0012. 0033 - taken from the front. AB is sitting and is visible from mid-thigh to slightly above the navel. She is wearing underwear. Her legs are closed.

No part of her genitals is visible. 0034 - similar to 0012, but AB is wearing what she described as “booty shorts”, which cover her buttocks to approximately three-quarters of the way down. 0035 - similar to 0012, but from an angle approximately 45 degrees back from straight on the side.

Again, AB is wearing a thong. 0036 - similar to 0012. 0037 - similar to 0014. 0038 - similar to 0014, but AB’s face is visible, and the bedding or clothes are pulled up such that very little of one breast is visible and the hand covers the other breast to about the same extent as in 0014. 0039 - similar to 0038, but the camera is closer, and the breast covered by the hand is less visible. 0040 - similar to 0038. [ 25 ] EF photographs: 0021 - EF’s unclothed front can be seen from the neck to the waist.

Her bare breasts are completely uncovered. 0022 - EF is seen from the front, at approximately 45 degrees off to the side. She can be seen from shoulders to knees. Her breasts are bare, and she is wearing underwear. 0023 - EF is seen from directly behind, from waist to knees. She is wearing a thong and is standing such that the material of the thong can be seen from the waistband through to where it covers her vulva. No part of her vulva or anus can be seen. 0024 - this photograph is taken with EF lying down on her side. The camera is positioned behind her at about her knees, looking toward her head.

She is wearing a thong and an opaque bra. Both buttocks are fully visible, but due to the angle, EF’s position and shadows in the photo, much less of the thong and what it covers can be seen than in 0023. 0025 - EF testified that this photograph shows her “butt”, although it is not clear that this is in fact what it shows. She was not challenged on this description. In any event, between the photograph and her description, it is not clear to me which body

part is being depicted. 0026 - similar to 0022. 0027 - EF can be seen from behind, at about a 45-degree angle, from shoulders to knees. She is wearing a thong, and one breast is visible from the side to and including the nipple. 0028 - EF is seen from chin to knees. The camera angle is slightly forward of straight on the side. EF is wearing underwear and a full- coverage opaque bra. “Sexual organ” [ 26 ] The Supreme Court in Sharpe declined to define “sexual organ” (para 53): [53] Prudence suggests leaving the precise content of "sexual organ" to future case-law.

However, no one suggests that s. 163.1(1)(a)(ii) was designed to catch depictions of eyes or lips. Parliament's purpose of targeting possession of material associated with a reasoned risk of harm to children suggests a restrained

interpretation of "sexual organ" in subpara. (ii), similar to that discussed above with respect to subpara. (i). [ 27 ] The reference to subparagraph (

i) is to the Court’s discussion of “explicit sexual activity” in paras. 44 - 49, referring to s. 163.1(1)(a)(

i) and the Court’s conclusion that it must be given a “restrained

interpretation” (paras 47 and 48) and that it refers only to “the extreme end of the spectrum” (paras 47, 48 and 49). To make itself clearer, the Court went on to say that a video of a caress of an

adolescent girl’s naked breast “might” meet the definition, “but only if the activity is graphically depicted and unmistakably sexual” (para 49). The comment in paragraph 53, incorporating that discussion into the

interpretation of s. 163.1(1)(a)(ii), therefore, indicates that the

interpretation of “sexual organ” should likewise refer only to “the extreme end of the spectrum”. However, all of the qualifiers imposed on the reference to the naked breast suggests very strongly that, in the context of still photography under s. 163.1(1)(a)(ii), a naked adolescent female breast falls within the definition of “sexual organ”, even if only just. [ 28 ] There has also been a significant amount of case law which has held that the naked pubescent female breast constitutes a “sexual organ” for the purpose of s. 163.1(1)(a)(ii).

See, for example: R v VPS , 2001 BCSC 619 ; R v RRK , 2010 ONSC 330 ; R v DDM , 2011 ABPC 9 ; R v TW , 2014 ONSC 4532 . [ 29 ] I am therefore satisfied that photographs 0021, 0022, 0026 and 0027, all showing EF’s bare breast or breasts, depict a sexual organ. As this was the only question regarding them, I am satisfied that these four photographs constitute child pornography.

The situation is not as clear regarding the photographs in which AB is covering her breasts with her hands, or in which the breasts are seen covered by a bra. [ 30 ] The Ontario Court of Appeal in R v MB , 2019 ONCA 237 at para 11 [ MB ] concluded that sexual organs need not be uncovered to qualify: [11] With respect to the depiction of the sexual organs or anal regions for a sexual purpose, in particular, we note the following: the shape of the children's sexual organs and anal regions through the indentation of their diapers is clearly visible in many of the images, and the children are posed in a sexualized manner; the female child's pre-pubescent breasts are visible in image 1 in which the child is clad only in a diaper and posed in a sexualized manner across a bed.

All of the children in those photos are clearly well under the age of 18 but also clearly beyond the age of children who ordinarily wear diapers. The principal focus of those photographs is the depiction of the children's diapered groin areas. Image 7, primarily focussed on a male child's naked buttocks and sexual organs, ostensibly during a diaper change, also properly fits within the definition of child pornography.

Given the image's primary visual emphasis and its placement among the other pornographic images, this photograph cannot be viewed objectively as a "family photo" but rather assumes from this context the dominant characteristic of the depiction of the child's sexual organs and anal region for a sexual purpose: Sharpe , at para. 51 . [ 31 ] To the extent that MB stands for the proposition that genitalia clearly visible through clothing constitutes a “depiction of sexual organs”, I offer no comment: the Court of Appeal was not referring to covered breasts.

I would not take these comments as endorsing the proposition that covered female breasts constitute a depiction of “sexual organs” for the purposes of child pornography, particularly when such a finding runs squarely contrary to the comments of the Supreme Court of Canada in Sharpe that a depiction of the actual touching of a naked female breast might constitute child pornography. [ 32 ] There are several cases in which photographs of children wearing clothing which covered their breasts or genitals were found to be child pornography. [ 33 ] In R v Schacter , 2018 ONCJ 371 [ Schacter ], the Court said (para 18): [18]

Section 163.1 does not require that the sexual organ or anal region of the child be exposed. It merely requires the depiction, for a sexual purpose, of a sexual organ or anal region. Only two other sections of the Criminal Code mention the word "organ", ss. 163 and 173(2) . In both cases the sections refer to "genital organ" and in both cases the other sections refer to "exposed" "genital organ(s)".

The fact that s. 163.1 speaks only of "sexual organ" or "anal region" and not "exposed sexual organ or anal region" means the sexual organ or anal region need not be exposed. [I believe that the reference to s. 163 was meant to refer instead to s. 162, as s. 163 does not contain the wording quoted.] [ 34 ] With respect, I must disagree with the learned judge’s analysis.

Section 162 refers to “a place in which a person can reasonably be expected to . . . expose his or her genital organs or anal region”. Similarly, s. 173(2) has this wording: “Every person who, in any place, for a sexual purpose, exposes his or her genital organs . . .” Thus, the references in these sections are not to “exposed sexual organs” as the Schacter analysis states. The word “exposed” in the phrase “exposed sexual organs” is an adjective, referring to a quality of the organs; “expose” or “exposes” in ss. 162 and 173(2) is a verb, denoting an action.

The presence of the word “expose” or “exposed” is therefore necessary to the offences being described in those sections: without the verb, the offence would make no sense, either grammatically or legally. Its presence is not necessary, grammatically or legally, for s. 163.1 to make sense.

It is in my respectful opinion therefore impossible to equate the presence of that word as a verb in those sections, with its absence as an adjective in s. 163.1, and to draw from this difference any conclusions about Parliament’s intentions. [ 35 ] In R v Wanamaker , 2011 ABQB 310 , 517 AR 141, the Court dealt with thousands of photographs, almost all of them described as “under age girls, often scantily clad and posed in a provocative manner” (para 42).

Unfortunately, the totality of the reasoning about whether or not clothed children meet the definition of child pornography is this: “There is no doubt in my mind that these images have as their dominant characteristic the depiction of a sexual organ or anal region for a sexual purpose and intended to cause sexual stimulation to some viewers.” (para 42). Obviously, this is a conclusion, rather than the reasoning which led the learned judge to that conclusion.

Without understanding the thought process that led the learned judge to that conclusion, I am unable to follow it. [ 36 ] R v DC , 2009 NBCA 59 , 351 NBR (2d) 341, involved images of a child in clothing, but in each case the material is either see- through naturally or is wet and is therefore see-through. I do not regard this case as helpful in deciding the matter before me, in which the material is opaque. [ 37 ] R v Y , 2015 NSPC 14 , 357 NSR (2d) 340 involved two photographs of a teenaged girl, one with a bra on and one without.

The Court simply asserted that both were child pornography without any analysis (para 4). [ 38 ] R v Rudiger , 2011 BCSC 1397 , 278 CCC (3d) 524 [ Rudiger ] dealt with an accused who had been surreptitiously videotaping children playing in a park. He argued that depictions of clothed body parts cannot constitute child pornography. The Court analyzed his

argument in the following manner (paras 122 - 129): [122] The child pornography provisions of the Criminal Code have as their "fundamental object" the protection of children fromexploitation and abuse by prohibiting possession of material which poses a "measured risk of harm" to children: R. v. Sharpe, 2001 SCC2 , [2001] 1 S.C.R. 45 at paras. 34, 74, 82 and 122-123; R. v. S. (V.P.), 2001 BCSC 619 at paras. 73-74, 85; R. v. Nedelec, 2001BCSC 1334 at para. 32; R. v.

R.R.K., 2010 ONSC 330, 251 C.C.C. (3d) 272 at para. 29. [123] Thus, in Sharpe, the Court explained that Parliament did not intend to cast its "net over all material that might conceivably poseany risk to children or produce any negative attitudinal changes". Rather the intention was to capture "clear forms of 'childpornography'": Sharpe at paras. 34, 73-75, and 128(2). [124] Sharpe dealt with what the word "depicted" in s. 163.1(1)(a)(

i) means, at paras. 42-43, and concluded: ... The only workable approach is to read "depicted" in the sense of what would be conveyed to a reasonable observer. The test must beobjective, based on the depiction rather than what was in the mind of the author or possessor. The question is this: would a reasonableobserver perceive the person in the representation as being under 18 and engaged in explicit sexual activity? [125] These comments, with the necessary grammatical and contextual adjustment, pertain with equal force to the word "depiction"found in s. 163.1(1)(a)(ii).

The focus of the Court in Sharpe, when considering the meaning of "depicted", was to address the question ofwhose perspective should be applied to the depiction. The Court did not, however, deal with the simple meaning of the word "depict".That word is defined in the Concise Oxford English Dictionary, 11th ed. revised, as to "represent by a drawing, painting, or other artform". [126] Though the words "explicit sexual activity", found in s. 163.1(1)(a)(i), are not directly relevant, the further comments of the Courtin Sharpe do inform the interpretive principles which pertain: [47] A restrained

interpretation of "explicit sexual activity" is also supported by reading s. 163.1(1)(a)(

i) and s. 163.1(1)(a)(ii) together.They are designed to cover two types of depiction: (

i) the depiction of explicit sexual activity; and (ii) the static depiction of the sexualorgans or anal regions of children. Subparagraph (ii) clearly indicates that Parliament's concern was with visual representations near theextreme end of the spectrum. While it is possible in the abstract to argue that Parliament intended a much broader sweep for subpara. (i)than for (ii), it seems more likely that Parliament was seeking to catch in subpara. (

i) the activity-related counterpart to subpara. (ii). [48] Finally, Parliament's goal of preventing harm to children related to child pornography supports a restrained

interpretation of "explicitsexual activity". The evidence suggests that harm to children produced by child pornography arises from depictions of explicit sexualacts with children at the extreme end of the spectrum. The literature on harm focuses mainly on depictions of sexual activity involvingnudity and portrayal of the sexual organs and anal region.

It is reasonable to conclude that this sort of material was uppermost inParliament's mind when it adopted this law. [49] I conclude that "explicit sexual activity" refers to acts which viewed objectively fall at the extreme end of the spectrum of sexualactivity - acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under ordepicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, liketouching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity.

Certainly, a photo of teenagers kissingat summer camp will not be caught. At its furthest reach, the

section might catch a video of a caress of an adolescent girl's naked breast,but only if the activity is graphically depicted and unmistakably sexual. (For a discussion of such concerns see B. Blugerman and L.May, "The New Child Pornography Law: Difficulties of Bill C-128" (1995), 4 M.C.L.R. 17.) [Emphasis in original.] [127] The meaning of "dominant characteristic", "sexual purpose", and "sexual organ" in s. 161.1(1)(a)(ii), as explained in Sharpe, werereferred to by the trial judge at paras. 17 and 23 of his reasons for conviction and are found at para. 119 of these reasons. [128] Does a "restrained

interpretation" of "sexual organ or anal region" require that such depictions be limited to naked pictures orrepresentations of such organs or areas? I was referred to no authority which directly addresses this issue. I do not accept this propositionadvanced by the Appellant. In Sharpe, though the precise content of "sexual organ" was left to future cases, the comments made by theCourt were directed to such innocent body parts as "depictions of eyes or lips". This aligned, in the context of "explicit sexual activity",with such matters as "touching, kissing or hugging". In each case, a "restrained

interpretation" militated against the inclusion of suchbody parts or activities within the respective subsections of s. 163.1(1)(a). [129] Sharpe and the other cases which consider these issues emphasize the importance of context. Nudity, or the lack thereof, is animportant element of context, but it is not determinative. Absent evidence of a "dominant prurient purpose", a family photo of a child in abathtub is not pornographic, despite the child's nudity: Sharpe at para. 51. The converse, however, can also be true.

Given compellingevidence of a "dominant prurient purpose", a depiction of a child who is not naked can be pornographic. [39] With the greatest of respect, this analysis is flawed. Whether or not a photograph depicts sexual organs or the anal region isan objective matter, unrelated to whether or not the purpose of the maker of the photograph was sexual: that question becomes relevantonly at the next step of the analysis.

To conflate the two steps would mean that exactly the same photograph, depicting exactly the samebody parts, taken by two different photographers, could both show and not show sexual organs depending on something extrinsic to thephotograph itself, namely the intention of each photographer. That is not what the

section says. The

section calls on the Court to look tothe photograph, not the photographer, to determine what the photograph depicts; further analysis proceeds if, and only if, the photographdepicts a sexual organ or the anal region. [40] It is to avoid such absurdities as the same photograph both showing and not showing a sexual organ that the s. 163(1)(a)(ii)analysis must be done step by step, rather than allowing one step to influence the other. If the photograph does not depict sexual organsor the anal region, it is not capable of constituting child pornography, regardless of the intention of the photographer. If it does in fact

depict sexual organs or the anal region, then and only then does the analysis proceed to ask whether such depiction is the dominant characteristic of the photograph, and whether or not that depiction is for a sexual purpose.

Conflating the various tests under s. 163.1(1) (a)(ii) risks the definition of child pornography being reduced to a judge’s gut reaction, the kind of unhelpful analysis best illustrated by Justice Potter of the United States Supreme Court in Jacobellis v Ohio , 378 US 184 (1964), who declined to offer a definition of hardcore pornography, stating instead, “I know it when I see it.” The analysis degenerates into “this looks like child pornography, therefore I conclude that it depicts sexual organs or the anal region”. [ 41 ] Rudiger quotes Sharpe as interpreting s. 163.1(1)(

a) as applying only to “visual representations near the extreme end of the spectrum” depicting “nudity or intimate sexual activity, represented in a graphic and unambiguous fashion”, those which fall at “the extreme end of the spectrum of sexual activity” and then finds that photographs of covered genitalia meet that description. With all due respect, I believe that the Supreme Court of Canada meant precisely what it said when it stated that, to be found to constitute child pornography, depictions must be extreme.

Furthermore, the Court was extremely explicit when it said that child pornography must depict “nudity or intimate sexual activity” ( Sharpe , para 49 ). It is simply not possible, in my respectful opinion, to read those words and conclude that a photograph which does not depict one or the other meets the Supreme Court’s test. A photograph showing an opaque covering (which is not so tight as to explicitly show a detailed view of what it is covering) over a sexual organ cannot meet the definition of child pornography as interpreted by the Supreme Court.

It does not show nudity “represented in a graphic and unambiguous fashion”. There is nothing “at the extreme end of the spectrum”. To conclude otherwise is, in my respectful opinion, to ignore the guidance of the Supreme Court in Sharpe . [ 42 ] I conclude, therefore, that a covered female breast does not constitute a “sexual organ” for the purposes of s. 163.1(1)(a)(ii). Similarly, a photograph of the genital area where the genitals are covered and no details can be made out does not depict a sexual organ.

It makes no difference whether the breast or genitals are covered by a hand, a piece of clothing or a fig leaf.

I make no comment as to what degree of sheerness or opacity of the covering material might make a difference to this conclusion, or whether material molded so tightly to the skin as to show the organs underneath in detail might qualify: there is no such material before me, and I accordingly do not need to determine that question. [ 43 ] The photographs of AB in which her breasts are covered, whether by clothing or by her hand (0011, 0014, 0015, 0037, 0038, 0039, 0040), and the photograph which shows her wearing clothes which cover her vulva (0033), therefore do not constitute child pornography.

Similarly, 0028 of EF is not child pornography. Those photographs of EF which show her naked breast or breasts, however, are child pornography. Those are 0021, 0022, 0026 and 0027. “Anal region” [ 44 ] The photographs which show naked buttocks from the side at various angles must be analyzed differently. The buttocks are clearly not a sexual organ as such, and the test for “sexual organ” must be objective, not whether or not some persons may find a particular organ sexually interesting.

The question regarding buttocks is whether or not they are part of the “anal region”. [ 45 ] “Anal region” has been discussed in several cases, including Rudiger . There, the learned judge appears to have simply accepted (para 119) the trial judge’s comments that the “anal region” is the area around the anus, and that the buttocks are “in the anatomical area of the anus and therefore constitute the ‘anal region’”. [ 46 ] R v Wichert , 2012 ONCJ 560 [ Wichert ] involved inter alia photographs of boys “mooning” the camera - that is, bent over with their naked buttocks directly toward the camera.

In at least one instance, the anus of one boy was visible. The Court concluded that the photographs depicted the anal region of the boys. [ 47 ] In R v Gardiner , 2017 ONSC 3904 [ Gardiner ] at para 22 , the Court concluded that the judge in Wichert had distinguished between “anal region” and “buttocks”. Gardiner itself involved a video of a 16-year old girl, in which “[t]he primary body part depicted . . . is the buttocks” (para 16). The issue was, therefore, whether or not the buttocks constitute “the anal region”.

The Court began by finding that “the definition of anal region includes parts of the body around or near the anus” (para 27). Part of the video showed the victim naked from the waist down, bending over directly in front of the camera, depicting “the entirety of [the victim’s] buttocks facing directly towards the camera” (para 30). It appears that the posture was similar to that of the boys in Wichert . Without further analysis, the Court concluded that this showed the anal region (para 32). [ 48 ] R v Ruby , [2018] NJ No 407 (QL) (NL Prov Ct) involved transmission of intimate images without consent.

The definition of “intimate image” (s. 162.2(a)) refers to “genital organs or anal region”, and the Court was called upon to decide whether or not a particular photograph showed the “anal region”. The photograph was described by the trial judge as follows (para 3): [3] . . . It showed the complainant in her bedroom standing with limited lingerie on her person. The photo is taken from the left /back angle.

The breasts are covered, and there is a piece of lingerie around the waist which shows what appears to be a small garter like belt going down the left leg and is attached to stockings that come up to the middle of the upper thigh of the left leg. The right leg appears to be similarly clothed. There is no covering of the buttocks, and the photo, taken from the left/ back of the complainant, shows the full left buttocks as well as the cleavage near her anus, and the right naked buttocks.

It did not show the anus, but areas up to what I would describe as very close to the anus. [ 49 ] After referring to both Rudiger and Gardiner , the Court concluded that the photograph showed the complainant’s anal region (para 23). [ 50 ] In R v Bahamonde , 2021 ONSC 7526 [ Bahamonde ], the accused was charged with surreptitious recording of a number of women in what were referred to as “up-skirt” videos, contrary to s. 162(1)(b), which refers to “genital organs or anal region”. The videos are described as showing “the buttocks of a person”, “part of a buttock”, “the buttock area” and “the buttocks” (para 5).

The issue was whether or not these videos depicted the anal region of the women in question. Citing Rudiger , the Court stated, “buttocks are in the anatomical area of the anus and therefore constitute the anal region” (para 22). [ 51 ] As noted above, I am disinclined to follow Rudiger due to the flawed process of its reasoning. Both Wichert and Gardiner

involve full-on naked views of both buttocks, with the subjects of the photographs bent over. In Ruby , the complainant is not wearing any underwear which would cover her anus (such as a thong), but her anus is not visible. The photograph shows the full left buttock and much of the right, and areas “very close to the anus”. Bahamonde , unfortunately, does not contain a great deal of information as to how much of the buttocks are shown in each photograph. [ 52 ] It is clear that “the anal region” means something more than the anus.

Had Parliament intended that the anus be visible, it would simply have stated “sexual organ or anus” in s. 163.1(1)(a)(ii). Logically, “anal region” must mean some area near the anus. Equally, “anal region” cannot mean the entirety of the buttocks: it would be nonsensical to suggest that a patch of skin just behind the hipbone and just below the waist was part of the anal region. Again, Parliament could have stated “the anus or buttocks” when defining the forbidden area; it chose not to do so. Therefore, something less than the full area of the buttock but greater than the anus constitutes “the anal region”.

Where, then, is the line to be drawn? [ 53 ] I refer again to the principles enunciated by the Supreme Court of Canada in Sharpe for interpreting s. 163.1: (1) there must be a “restrained

interpretation” of, inter alia , the definition of “anal region”; (2) the

section is intended to catch only that which is “near the extreme end of the spectrum”; (3) the representation must be “graphic and unambiguous”. Applying these principles, I conclude that “the anal region” must comprise only the anus and a very limited area around it. Typically, a person standing upright will have their buttocks touching each other, such that their anus and a small area around it is not visible. In my view, it is that which constitutes “the anal region”. Any portion of the buttocks which on a typical person would normally be visible in such a posture is outside of “the anal region”.

In my view this definition best meets the principles set out by the Supreme Court in Sharpe , while providing a reasonably clear delineation between what is and what is not “the anal region”. [ 54 ] Using this definition, none of the photographs of AB show her anal region. Photograph 0023 of EB shows her anal region and is therefore child pornography. Conclusion regarding possession of child pornography [ 55 ] There are no photographs of AB which constitute child pornography, and accordingly the accused is not guilty of possession of child pornography with respect to AB.

With respect to EF, photographs 0021, 0022, 0023, 0026 and 0027 are child pornography. I am satisfied that he was in possession of them, from the evidence of AB and EF as well as Mr. Holynski himself, and he is accordingly guilty of this charge. DISTRIBUTION OF CHILD PORNOGRAPHY [ 56 ] Given my conclusions with respect to what constitutes child pornography, this charge can proceed only with respect to EF photographs 0021, 0022, 0023, 0026 and 0027. These photographs were found by police on AB’s phone. She testified that she did not receive them from EF, and EF testified that she had only sent them to the accused.

I accept EF’s testimony in this regard. AB was unclear as to how they come to be in her possession, but I conclude that I do not need to know the precise mechanism: given that EF only sent them to Mr. Holynski, only Mr. Holynski could have sent them to AB. By so doing, he has distributed child pornography. CONCLUSION [ 57 ] I therefore find Mr. Holynski not guilty of counts 1, 6 and 7, and guilty of counts 2, 3, 4 and 5. __________________________ Judge Q.D. Agnew