Her Majesty the Queen - v. -, 2010 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 050 Date: May 4, 2010 Information: 24030638 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clint Matthew Leugner Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. James Korpan For the Accused JUDGMENT D.J. KOVATCH , J Background

[ 1 ] The accused, Clint Leugner, ordered and purchased two books from a supplier in the United States. The books were being sent to him through the mail. Canadian customs officials opened the package and examined the two books. The customs officials were concerned the books contained child pornography. They notified the RCMP. The package containing the two books was then closed up and delivered to the accused, who accepted delivery. The RCMP obtained and executed a search warrant. They searched the accused’s place of residence, a mobile home, and an out building.

They seized a large number of books, which they believed contained pornographic material. The accused was charged with four charges, as follows. [ 2 ] That, on or about the 6 th day of April 2006, near Moose Jaw, he did smuggle into Canada, whether clandestinely or not, goods to wit: two paperback books, with written depictions of children engaged in sexual acts, the importation of which is prohibited, pursuant to this or any other Act of Parliament, contrary to

section 159 of the Customs Act ; [ 3 ] That, on or about the 6 th day of April 2006, near Moose Jaw in the Province of Saskatchewan, did have in his possession child pornography, to wit: a photographic, film, video or other visual representation 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, contrary to

section 163.1(1) (a)(

i) of the Criminal Code . [ 4 ] That, on or about the 6 th day of April 2006, near Moose Jaw in the Province of Saskatchewan, did have in his possession child pornography, to wit: a photographic, film, video or other visual representation 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, contrary to

section 163.1(1) (a)(ii) of the Criminal Code . [ 5 ] That, on or about the 6 th day of April 2006, near Moose Jaw in the Province of Saskatchewan, did have in his possession child pornography, to wit: written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act , contrary to

section 163.1(1) (

b) of the Criminal Code . [ 6 ] The Crown elected to proceed summarily on all charges, and the trial proceeded in Provincial Court. The accused did not challenge the issuance of the warrant, and admitted that he was in possession of all of the alleged materials. Different defences are raised in relation to each of the charges. I will more fully set out the evidence as I deal with each of the charges. Count #1 - The Smuggling Offence [ 7 ] Count #1 relates to the importation of the two paperback books through the mail service. Defence counsel raises three defences to this charge, as follows: 1.

That the two books are not child pornography, and as a result are not a good or product “the importation of which is prohibited by an Act of Parliament.” 2. The offence of smuggling requires a malicious intent. It requires an intent to knowingly import the good or product that one knows is illegal. The accused did not possess the requisite intent. 3. The accused was operating under an officially induced error of law, giving him a legal defence to the charge. [ 8 ] The two books being imported by mail were part of a series of twenty-five books published by Surrey House, a publisher headquartered in California.

The entire collection of twenty-five books are the subject matter of Count #4 in this information. When I deal with Count #4, I will fully set out the reasons for determining that this collection of books is child pornography. At this time, in relation to Count #1, I simply state that the two books are child pornography. Consequently, they are a good or product, the importation of which is prohibited by an Act of Parliament, and this defence must fail. [ 9 ] In oral argument for the accused, counsel stated that the accused required a malicious intent.

He stated the accused was open and transparent in his actions, and consequently the requisite intention was not present. He also stated that the accused had very limited knowledge regarding the material contained in the books. It was required that the accused knowingly import child pornography. As he did not have this knowledge, he did not have the necessary intent.

[10] I agree with Mr. Korpan that s. 159 of the Customs Act is a specific intent offence, requiring a mens rea. The accused cannotbe convicted unless the Crown has proved the necessary intent. However, I cannot agree with the definition of the necessary intentargued by Mr. Korpan. [11]

Section 159 of the Customs Act, R.S.C. 1985, C.1 (2nd Supp.), reads as follows: 159 Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subjectto duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act ofParliament. [12] Firstly, it must be noted that the offence of smuggling will occur “whether clandestinely or not.” I conclude that these wordsin this

section are present to meet the very argument advanced by Mr. Korpan. These words mean that an accused can be prosecutedwhen he is not attempting to bring goods into the country in a clandestine fashion. The accused can be prosecuted when he is beingfairly open and above board about bringing the goods into the country. The fact that Mr. Leugner was open and transparent about hisactions does not mean he did not have the necessary intent. [13] I would also conclude that prosecutions under this

section would be completely undermined if the Crown were required toprove that an accused knew certain goods were illegal or prohibited. It is unlikely that an accused will have such knowledge, unless anduntil the Court has adjudicated on whether certain goods are illegal. As a result, it is my view that this

section does not require theCrown prove that the accused knew that the goods were illegal or prohibited. [14] In the cases of R. v. Johnson, (NB CA), [1994] 156 N.B.R. (2d) 119 [NBCA] and R. v. Rieger, 2004NBPC 3, the Court dealt with the definition of smuggling and the necessary intent for that offence. In the Johnson case the accusedargued that he waited on shore for tobacco to be delivered to the shore. He then picked up the tobacco and conveyed it to Nova Scotia,where he was arrested. He argued that his actions did not meet the definition of smuggling.

The Court stated in part as follows: Smuggling consists of bringing on shore, or in carrying from the shore, dutiable goods, wares, or merchandise for which duty has notbeen paid, or goods the importation of which is prohibited. Further: We do not accept the definition of smuggling suggested by Mr. Johnson and see no reason to narrow the meaning previously given tosmuggling. In our view, Mr.

Johnson’s actions in either removing the tobacco from the shore himself or arranging for it to be removedand not paying duty, together with his participation in arranging for the tobacco to be brought to Canada, amounts to smuggling. [15] In the Rieger case, the Court referred to the definition of smuggling from the Johnson case. The Court then stated: Thus, the offence created by s. 159 can be committed either clandestinely or openly and applies to both dutiable and prohibited goods. In this case, there was nothing clandestine about Mr. Rieger’s importation of goods.

However, he may be convicted of smuggling if heintentionally brought into Canada either dutiable or prohibited goods. There would be duty payable on Mr. Rieger’s settlers effects;however, it is unquestionable that several of the goods were prohibited and in respect of others, the importation was subject to a permitwhich he did not have. See also R. v. Chalk, 2007 ONCA 815, referred to in paragraph 31 of this judgment. [16] In the present case, Mr. Leugner very clearly arranged for the purchase and the delivery of these books to him in Canada. Heclearly arranged the import of these books.

He knew generally what the books were about. At other points in his evidence, Mr. Leugnertestified that he purchased these books to complete his collection of the Surrey House books. At other points in his testimony, he

referred to this collection of books as pornography and child pornography. In dealing with the child pornography charge contained inCount #4, he attempted to justify his possession by s. 163.1(6) of the Criminal Code. As a result, it is clear that Mr. Leugner knew inmore than a general way what these books were about and what he was getting. He quite intentionally arranged to purchase these booksin the United States, and have them delivered to him in Moose Jaw by the mail service. As a result, I conclude that his actions met thedefinition of smuggling and he had the necessary intent to import these items.

This defence must fail. [17] Lastly, with respect to this charge, the accused argues that he can rely upon the defence of officially induced error of law. Heargues that on previous occasions he had ordered materials from outside of the country, and that when these materials entered thecountry, they were seized and held by Canadian Customs. In each case, he was served a Notice of Detention, which of course advisedthe goods had been detained. These notices, on the reverse side of the page, also contained some statements regarding legal optionsavailable to the importer of the goods.

The accused entered at least three Notices of Detention of goods as Exhibit D-8. It appears thatover the course of time, the explanation of legal rights or options has varied just slightly. These changes appear to me to be quite minorand slight wording changes. One of the notices received by the accused is dated February 24, 2006, approximately six weeks prior to thedate of the present charges. The notice respecting rights or options, printed on the back of the Notice of Detention, reads as follows: As the importer of this material, you may exercise one of the following options: 1.

You may dispute this decision, pursuant to

section 60 of the Customs Act, by filing a written request to the Canada Border ServicesAgency (CBSA) within 90 days of the date of determination indicated on Part B of this form, referring to the title of the material inquestion and the reference number (shown as Regional Control No. on the top right-hand corner on the front of this form). In the case ofobscenity, you may also wish to include in your appeal arguments with regard to the artistic, literary, or other merit of the material inquestion. Please note that the submission of any additional information is voluntary on your part. The letter of appeal should beforwarded to the following address: Customs Disputes

Section Prohibited Importations Unit Canada Border Services Agency 5th floor, Killeany Place 150 Isabella Street Ottawa, Ontario K1A 0L8 2. You may export the goods at your expense, pursuant to subsection 102(1) of the Customs Act, under CBSA control. SinceCanada Post prohibits the use of the mail system for the transportation of prohibited goods, please contact the CBSA office at the pointof entry (shown on the top right-hand corner on the front of this form) to make export arrangements; or, 3.

You may abandon the material to the Crown, forfeiting your right to appeal or export, in which case the material will bedestroyed 90 days after the date of determination. If no contact with the CBSA is made within 90 days of the date of determination, the material will be considered forfeit, pursuant tosubsection 39(1) of the Customs Act, and will be destroyed.

Pursuant to subsection 39(2) of the Customs Act, the importer of goods that are forfeit under subsection (1) and the owner thereof at thetime of forfeiture are jointly and severally liable for all reasonable expenses incurred by Her Majesty in right of Canada in the disposal ofthe goods, where they are disposed of otherwise than by sale.

Please note that the costs incurred by Her Majesty in holding the goods in safekeeping, pursuant to subsection 37(1), are also theresponsibility of the owner and importer under subsection 38(1). [18] The accused testified and argued that on the basis of these notices, he believed that if the materials he had on order were inany way illegal, then they would be seized by customs officials, and he would be allowed to simply forfeit them.

If, on the other hand,the goods made their way through customs and were delivered to him, that was an indication that the goods were legal and he could relyupon that indication and would be committing no offence. [19] In the case of R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55, all nine members of the Court agreed that an

acquittal must be entered. Eight members did not consider whether officially induced error of law provided a defence. Chief Justice Lamer was the only judge to make this the basis of his judgment. As a result, Crown counsel argues that the Chief Justice’s comments are obiter . He may be correct, but the Chief Justice’s decision in Jorgensen seems to remain as the authoritative judgment on officially induced error of law. [ 20 ] At paragraph twenty-five of his decision, the Chief Justice makes it clear that officially induced error of law exists as an exception to the rule of ignorance of the law.

Further, at paragraph thirty-seven, that where it is found to be applicable, it will lead the Court to enter a judicial stay of proceedings, rather than an acquittal. The Chief Justice then states: Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases. [ 21 ] Between paragraphs twenty-five and thirty-seven, the Chief Justice sets out the requirements in order to rely upon the officially induced error of law.

The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of law or of mixed law and fact. ... Mistakes of law will only be exculpatory in narrowly defined circumstances. Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined.

It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. ... Government officials who are involved in the administration of the law in question will be considered appropriate officials. ...The official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. ...

The determination of whether the official was an appropriate one to seek advice from is to be determined in the circumstances of each case. Once an accused has established that he sought advice from an appropriate official, he must demonstrate that the advice was reasonable in the circumstances. In most instances, this criterion will not be difficult to meet. As an individual relying on advice had less knowledge of the law than the individual in question, the individual must not be required to assess reasonableness at a high threshold.

It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable, unless it appears on its face to be utterly unreasonable. The advice obtained must also have been erroneous. ...It is important to note that when no erroneous advice has been given, as in MacDougall, supra, this excuse cannot operate. Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice.

This can be shown, for example, by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused’s situation. [ 22 ] It is my view that the accused cannot meet these detailed legal requirements, and thus cannot rely upon officially induced error of law. Firstly, it is very apparent from the above quotations that the accused must have consulted with a government official and must have obtained legal advice.

In my view, it is implicit in the Chief Justice’s comments that the legal advice must be in relation to the very matter at issue. In other words, a general statement of law made with respect to another situation will not qualify as appropriate legal advice. In addition, the accused must obtain this advice in advance of

an act and rely upon that advice. None of these requirements have been met. The accused has not received legal advice here. He has relied upon a statement upon the back of the Notice of Detention. In my view, that is not legal advice from an appropriate official. The Notices of Detention that he had received were received by him for other materials that he was attempting to import, and had nothing to do with the materials that are before the Court.

As a result, even if it could be said that the statement of options was legal advice, that statement of options was not applicable to these materials, and did not constitute legal advice with respect to these materials. [ 23 ] Putting the accused’s position at its strongest, the accused had previously received Notices of Detention from customs authorities. He then extrapolated statements made on those notices, and extrapolated the results to this particular situation. In so doing, he did exactly what the Chief Justice said could not be done. The Chief Justice stated:

It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible. [ 24 ] For all of the above mentioned reasons, the accused cannot rely upon officially induced error of law to obtain a stay of the proceedings with respect to Count #1. I have determined that the Crown has made out its case for conviction on Count #1. I have rejected all of the defences advanced by the accused. As a result, the accused must be convicted of Count #1. Count #2 - The Movie [ 25 ] This movie involves a young woman.

At the beginning of the movie, you see her dressed in pigtails and wearing a short skirt with a top. Her dress seems clearly designed to make her appear to be under the age of eighteen years. She is sitting at a lemonade stand and licking a lollipop. A man then comes to her lemonade stand, and thereafter they engage in various sexual acts. [ 26 ] The charge alleges that this woman is under the age of eighteen years, or is depicted as being under the age of eighteen years, and is engaged in explicit sexual activity, contrary to s. 163.1(1) (a)(

i) of the Criminal Code . The relevant Code

section reads as follows: In this section, child pornography means a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or who is depicted as being under the age of eighteen years and is engaged in, or is depicted as engaged in, explicit sexual activity... [ 27 ] By consent, the accused entered statutory declarations prepared by Paul F. Little, which includes copies of identification for Lena Michelle Butler. These materials indicate that Lena Butler played the role of Molina in this video. Further, that Ms.

Butler’s date of birth is January 28, 1980. The materials further establish that the video was shot in the State of California between May 31, 1998 and June 30, 1998. In other words, these materials establish that the actress in question was eighteen years and four or five months old at the time she appeared in this film. [ 28 ] On the basis of these materials, the Defence argues that this is sexual activity with an adult person. Further, that this person is clearly an adult and thus it cannot be said that she is depicted as a person under the age of eighteen years.

As a result, I must conclude that this film is not child pornography. The Defence also argues that the accused was not aware that this segment appeared in the film, and as a result he did not have the necessary criminal intent. He also argues that the offence of officially induced error of law is applicable to this movie. [ 29 ] Because the evidence establishes that this actress is of the full age of eighteen years, the question becomes whether a person is depicted as being under the age of eighteen years. Clearly, the producer of the film wanted to imply that the actress was under the age of eighteen years.

I can conceive of no other reason why she would be shown wearing pigtails, selling lemonade and licking a lollipop. But is that sufficient to say that she is depicted as being under eighteen years of age? The cases that have examined this

section appear to say not. The Court examined this question in the case of R. v. Garbett, [2008] ONCJ 97. At paragraph sixty-nine of that decision, Mr. Justice MacDonnell quotes from Chief Justice McLachlin in the case of R. v. Sharpe, as follows: Does “depicted” mean: (

a) intended by the maker to depict; (

b) perceived by the possessor as depicting; or (

c) seen as being depicted by a reasonable observer? ... [The] statute makes it an offence for anyone to possess such material, not just those who see it as depicting children. The only workable approach is to read “depicted” in the sense of what would be conveyed to a reasonable observer. The test must be objective, based on the depiction rather than what was in the mind of the author or possessor. The question is this: would a reasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity? Mr.

Justice MacDonnell then continued on in paragraph seventy as follows: The questions that the trier of fact must ask, therefore, are whether the person in the representation “is” under the age of eighteen years, and if not, whether a reasonable person looking at the representation would perceive the person as being under eighteen. The latter question focuses squarely on how old a reasonable person would think that the person depicted actually is. Regardless of which question

is asked, the requirement of proof beyond a reasonable doubt applies. The difference lies in what the trier of fact must be satisfied of beyond a reasonable doubt. In relation to the first question, it is the actual age of the person in the representation. In relation to the second, it is whether a reasonable observer would perceive the actual age of the person as being under eighteen. A reasonable doubt with respect to the first question does not lead inexorably to a reasonable doubt with respect to the second.

Further, with respect to the second question, the trier of fact does not have to be satisfied that a reasonable observer would have no reasonable doubt about the age of the person. At paragraph seventy-four and seventy-five, the justice concluded as follows: The Chief Justice stated, unequivocally, that the question is “would a reasonable observer perceive the person in the representation as being under 18 ... ?” The

interpretation of Justices McCombs and Rowles would effectively amend that question by adding to it “... or as being an adult masquerading as a person under eighteen”. There is nothing in the Chief Justice’s reasons to justify the significant expansion of the reach of the child pornography provisions that this would entail. In my opinion, if the trier of fact concludes that a reasonable observer would perceive the person in a picture as, for example, a 50-year-old dressed in a diaper and a baby bonnet, the clear test articulated by the Chief Justice has not been satisfied, subparagraph (a)(

i) does not apply, and the image does not constitute child pornography. That is not to say that the manner in which the person is dressed or the location in which he or she is shown are irrelevant. Based on those circumstances, a trier of fact may well conclude that a reasonable observer would perceive the person to be under eighteen years of age. [ 30 ] In this case, I am not at all comfortable in saying that this actress looks to be under the age of eighteen years, or over the age of eighteen years.

As a result, I would have to say that I have a reasonable doubt about the matter, and that doubt must be resolved in favour of the accused. This charge must be dismissed. [ 31 ] As mentioned above, Defence counsel argued that Mr. Leugner had not viewed this video, and was not aware of its specific contents. As a result, he argued that Mr. Leugner did not have the necessary intent to be convicted. I would not accept this argument. In the Garbett case, at paragraph forty-nine, Mr. Justice MacDonnell quotes from R. v.

Chalk , 2007 ONCA 815 , as follows: To be in possession of child pornography, it is not necessary for the individual to have viewed the material. For example, a person may obtain pornographic material in an envelope, but without viewing it, either place it in a drawer or dispose of it in the garbage. It is the element of control, including deciding what will be done with the material, that is essential to possession. [ 32 ] However, if required to do so, I would determine that Mr.

Leugner can rely upon officially induced error of law with respect to the film, and if required to do so, would impose a judicial stay of proceedings. The Defence established that this film was classified and licenced for distribution by both the Ontario and Quebec Film Review Boards.

The Defence also established that many similar films using a teenage girl theme were available in Saskatchewan via the pay-per-view service offered by Access Communications, Shaw Cable and Sask Tel Max. [ 33 ] It seems to be that any reasonable observer on the street would believe or conclude that if such materials are approved and licenced for distribution by government agencies such as the Ontario and Quebec Film Review Boards, and Sask Tel, then the materials being distributed must be legal and appropriate.

As a result, I would conclude that there has been a clear legal determination with respect to this movie, made by both the Ontario and Quebec Film Review Boards. The accused was entitled to rely upon this determination, and if necessary is now entitled to rely upon officially induced error. For these reasons I would conclude that Mr. Leugner must be found not guilty of Count #2. Count #3 - The Magazine [ 34 ] Exhibit P-27 is a magazine entitled “ A Beginner’s Guide to Masturbation ”. It contains a large number of photographs of naked young women. Many of the photos depict the women using dildos.

Some of the photos depict two women engaged in sexual acts with each other. With this count, Mr. Leugner is charged with possession of “a visual representation, 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...”. As was the situation with Count #2, I cannot conclude that the models were or were not of the age of eighteen years. It follows that I have a

reasonable doubt about the matter, and Mr. Leugner must be acquitted of this charge. Count #4 - The Series of Twenty-Five Books [ 35 ] The final count relates to twenty-five paperback books, all published by Surrey House Inc., a company that was based in the State of California. The Court was not advised if this company is still incorporated or active. It would appear that all of these books were published and copyrighted in the 1970's. [ 36 ] All of the books are virtually the same size and the format or cover layout is very similar throughout.

All of the books have a hand drawn sketch on the front of the book that is quite inoffensive. There are no other pictures in any of the books. In my opinion, the books are quite poorly written and very repetitive in nature. Each of the books has numerous descriptions of sexual encounters between the various characters. Each of the books contains a notation on the cover indicating that sale to minors is prohibited. Some of the books contain a stamp “adults only”. Inside the cover the books contain a notation “a rated-X book”.

Each of the books contains a brief “forward” written by the authors before embarking on the main story. I will return to discuss the forward a little later on in these reasons. [ 37 ] The accused, Clint Leugner, testified that he is now thirty-three years of age. He is single, and lives in a mobile home, located on the same farm property as his parent’s home. He has a Grade 12 education. He had an eighty-eight percent average upon graduation from high school. [ 38 ] He testified that he has no sexual fantasies regarding children. To the contrary, he is attracted to adult women with dark hair and glasses.

He testified that many of the books that he owns do not reflect his sexual preferences. [ 39 ] He indicated that he owns around ten thousand books, and described himself as “obsessed with books”. This interest in books began when he was still in school. Near the end of high school, he acquired a book catalogue for a bookstore in California. It catalogued and advertised approximately three thousand titles. Many of these titles were really extreme information. Nevertheless, he decided that he wanted to read all three thousand of these books.

At the time of trial, he indicated that he had read about one third of those books. [ 40 ] Mr. Leugner entered as an exhibit a document entitled “Selected Books in Clint Leugner’s Library.” The list clearly indicates many books that are very extreme and controversial. The books cover a wide variety of topics. Mr. Leugner testified that he likes to read books written from an extreme viewpoint. Such books cause him to see the other side of issues and cause him to think about issues differently. [ 41 ] He testified that while in his twenties, for a period of time, he contemplated writing a book.

He decided, however, that he could not write well enough. He then got the idea of preparing a bibliography on a group or category of books. He thought about preparing such a bibliography on racist entertainment or racist pornography. He decided against this because the purchase of these books would provide support to “Nazi skinheads and white supremacist writers”. As a result, he then decided that he would prepare an annotated bibliography on pornography. He began to collect pornography from various suppliers. One of the suppliers that he began to collect from for this annotated bibliography was Surrey House Inc.

He found some of these books at various bookstores in Saskatchewan and elsewhere in Canada. Some of the other books were ordered off the Internet. He testified that he skimmed many of these books, but did not read many of them from cover to cover. He was aware that these books described a lot of sexual encounters with early adolescents. He testified that he had not seen this before in books. [ 42 ] Mr. Leugner indicated that this collection of books from the 1970's are now “historical artifacts” and that it was important to preserve them.

Prior to the 1980's, pornographic videos were much more expensive, and not widely distributed. However, all of this changed in the 1980's with the distribution of VCR machines and tapes. When this happened, porn on video became much more accessible and porn in the paperback novel faded into relative obscurity. He testified that pornography has gone through a historical evolution or development, as has literature as a whole, and many other things in our society. It is important to preserve these books, and to view them as part of the historical development of pornography and that type of literature.

He indicated that he sees more artistic merit and educational merit in these books than does the average person. Further, that society as a whole has something to learn from these books. [ 43 ] Mr. Leugner testified that he laughed at a number of the books that were part of the Surrey House collection. He found a

[ 43 ] Mr. Leugner testified that he laughed at a number of the books that were part of the Surrey House collection. He found a number of these books to be either humourous or to shock the reader away from certain behaviours. He also testified that he has read the Supreme Court of Canada decision in the case of R. v. Sharpe. He indicated that he does not agree with that decision, and does not agree that pornography poses the dangers to children that are indicated by the Supreme Court. [ 44 ] Throughout his evidence and argument, Mr. Leugner and his counsel described him as “a bibliophile”.

They defined a bibliophile as an eccentric individual who was obsessed with a collection of books. [ 45 ] Under cross-examination by Mr. Hendrickson, Mr. Leugner agreed that since graduating from Grade 12, he has not been enrolled in any post-secondary institution and has not received any post-secondary education. He is not currently enrolled in or receiving any post-secondary education. He has not engaged in any research for any kind of post-secondary institution. Further, he has not done anything about writing the annotated bibliography on pornography.

He indicated that he hopes to do that at some time in the future. He also testified that it is his hope or intention to pass on his collection of pornography to a university, so that it might be used for further study and education. He admitted however, that he has not yet approached any individual or university about making such a donation. [ 46 ] The Defence also called Professor Lorraine Weir as a witness. Dr. Weir has a PhD Degree in Anglo-Irish literature, and is a professor of literature at the University of British Columbia. She has written and lectured extensively.

She has been presented as an expert witness in various legal cases, including R. v. Sharpe, #2 and The Little Sister’s Bookshop Case . [ 47 ] Overall, I would describe Professor Weir’s evidence as extremely thought provoking. I have absolutely no doubt that she is a very effective literature professor because she is so thought provoking. She has very strongly held views on many issues and subjects. I very much respect her for her strongly held views, and for her ability to present and advance them.

However, some of those strongly held views, in my view, do not represent the facts or the law, and I cannot apply them to this case. For example, when pressed by Mr. Hendrickson, and by the Court, she stated that an individual should never be charged for possession of child pornography in relation to a fictional writing. The rationale, she explained, is that where a pornographic picture of a child is taken, there is instantly a de facto harm to the child by the distribution of that picture. However, no harm occurs to any child by a fictional writing. Fictional writing is simply words on paper.

The reader, upon reading those words, creates his own ideas or imaginative concepts. At one point in her testimony, she rhetorically questioned why we were wasting time and resources in the prosecution of Mr. Leugner in this matter. [ 48 ] While the above represents Professor Weir’s honestly held beliefs, it does not represent the law.

Section 163.1(1) (

b) of the Criminal Code provides that child pornography means “any written material ... that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act .” Under subsection (c), child pornography means “any written material whose dominate characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act .” Neither of these subsections draw any distinction between fiction and non-fiction.

As a result, I conclude that it is irrelevant whether a writing is fiction or non-fiction. The issue will be whether the writing meets the tests set forth in one of these subsections, so that it then meets the definition of child pornography. I specifically mention this aspect of her evidence because there are times during her evidence, that I will set forth, where I really questioned Professor Weir’s opinion and evidence.

More specifically, I really questioned whether the opinion was based upon an analysis or a desire to achieve a particular result, that the accused should be found not guilty of the charge. [ 49 ] Professor Weir testified that these books are very repetitious and not particularly well written. She qualified this by saying that one must distinguish between writings that have little artistic merit or educational value from those which have no artistic merit or educational value. [ 50 ] Like Mr. Leugner, she went on to testify that these books are a valuable piece of a cultural and educational record.

Further, that pornography has gone through an evolution and a continuum. These books represent a snapshot of child pornography at a particular time period during that continuum. [ 51 ] She also testified that the sexual norms or mores of society have been greatly transformed since the 1960's. These books illustrate an example of sexual attitudes and mores during a particular time in our history. For example, she indicated that the readers of these novels were primarily male, and heterosexual, from the emergent middle class.

As a result, we see a number of examples of stay at home housewives, rebelling and engaging in various sexual activities. She testified that this collection of books can be used as a valuable educational tool when looking at the evolution of pornography and the evolution of American society in the 20 th Century.

[ 52 ] She also testified about didactic literature and transgressive writing. She testified that didactic literature is designed to instruct or direct a particular course of action. Transgressive writing is not designed to instruct or advocate the course of action that is being described. To the contrary, it is writing that is designed to shock an individual, and promote a counter-response, different or opposite than what is described. In her view, the authors and editors of the Surrey House books were strongly committed to transgressive writing.

As a result, she indicated that the writers and editors took pains to emphasize that these books were fiction, and were not to be imitated or repeated. She concluded that even though there are many repetitious descriptions of sexual acts, that the writers were not advocating any sexual activity. Further, that these books would pose no harm to anyone under the age of eighteen years, and no one would be led to any sexual activity or deviant sexual activity by reading these books. She expressly disagreed with the Supreme Court of Canada decision in R. v.

Sharpe , and stated that no one would have sexual fantasies about children, or be led to, or encouraged to have sexual encounters with children by reading these books. [ 53 ] Lastly, she testified that she had reviewed the list of books contained in Mr. Leugner’s library. He has a very extensive collection of books, and she would describe him as a bibliophile. [ 54 ] In argument for the Defence, Mr. Korpan pointed out that the charge is very specifically laid under s. 163.1(1) (

b) of the Criminal Code . The charge is not laid under the (

c) subsection. As a result, the Crown must prove the charge as laid. The Crown must prove that these books are written materials that advocate or counsel sexual activity with a person under the age of eighteen years, that would be an offence under the Code. The Crown cannot resort to the definition of child pornography as contained in the (

c) subsection. [ 55 ] Mr. Korpan also argued that if I determine that this material meets this definition of child pornography, then Mr. Leugner is still entitled to a defence under s. 163.1(6) . He argues that this material has a legitimate purpose related to education and/or the material does not pose an undue risk of harm to any persons under the age of eighteen years. [ 56 ] Mr. Hendrickson, for the Crown, agrees that the charge is laid under the (

b) subsection, and that is what must be proved. He does not attempt to rely upon the (

c) subsection. He asserts quite simply that the Crown has proved the case it is required to prove under subsection (b). He also argues that on the evidence presented, the accused has failed to bring himself under

section 163.1(6) , and as a result is not entitled to use that subsection as a defence. [ 57 ]

Section 163.1(

b) requires that the Crown establish that there is written material that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act . On any kind of quick perusal of these books, it is very easily established that this is written material that describes repeated sexual encounters with individuals under the age of eighteen years. Virtually all of the books describe sexual encounters with individuals under the age of eighteen years. Mr. Korpan made no argument that this was not the case. As a result, two questions arise.

Firstly, are some of the sexual encounters such that they would be an offence under the Code ; and does this material counsel or advocate this kind of sexual activity. A number of the books describe incestuous sexual encounters. Many of these encounters involve adults with children under eighteen years of age. Incest is an offence contrary to s. 155 of the Criminal Code . For example, in the book “ Big Sister’s Little Brother ”, Kris and Mona are married, both for the second time. Kris has a daughter, Liz, from his first marriage. Mona has a son, Curt, from her first marriage.

According to the book, Curt is thirteen years of age. The book describes a sexual encounter between Curt and his mother. According to my quick review, at least seven other titles involve descriptions of incestuous sexual encounters. [ 58 ] A number of the books involve individuals in a position of trust engaged in sexual encounters with a young person. As a result, a number of those books describe the offence of sexual exploitation as set out in s. 153 of the Code. Arguably, there are descriptions of a number of other sexual encounters that might be contrary to various provisions of the Criminal Code .

For example, there are some descriptions of sexual acts with dogs. As a result, I have no hesitation in concluding that these books describe sexual encounters with young persons that would be contrary to the Code. [ 59 ] The question then becomes whether these books counsel or advocate this kind of activity. As I understand the Defence argument, there are two separate bases upon which they assert that these books do not counsel or advocate sexual activity. The first is founded in the evidence of Dr. Weir. As mentioned above, she asserted that this was transgressive writing and not didactic writing.

At one point in her evidence, she stated that the editors were ideologically committed to transgressive writing. However, by her own evidence, these statements are fundamentally based upon the forward that is contained at the front of each book. It is interesting to note that in the Crown’s written argument, Mr. Hendrickson had a number of quotations, all from the texts of the books themselves, and on the basis of these quotations argued that these passages counselled or advocated sexual activity. In the Defence brief, Mr.

Korpan did not have a single quote from the text of the book itself to argue or make the point that this is transgressive writing. All of the quotations

made by Mr. Korpan were taken from the brief forward at the front of each book. During oral argument, I confronted Defence counsel about this. Mr. Korpan responded that in some respects the forward was more important than the text of the book itself. He said the forward “set the stage” and advised the reader what to expect in the book itself. [ 60 ] I cannot accept Dr. Weir’s evidence that these books are transgressive writings, nor can I accept that such a determination can be based upon the brief forwards at the front of these books.

In my view, a determination as to whether this is transgressive writing must be based upon the text of the book as a whole. One must find the evidence that the author is attempting to shock the reader to a different course of conduct within the text of the book itself. One cannot, as is the case here, provide numerous and graphic descriptions of sexual encounters, indicate that the children are enjoying these sexual encounters and they ought to be encouraged, and then convert that writing to transgressive writing by a one page forward that says “don’t do this”. In my view, that is what has happened here.

For example, the book “ Big Sister’s Little Brother ” graphically describes numerous incestuous sexual encounters. Everyone enjoys the sexual acts. Everyone wants to have further incestuous sexual encounters. But in the forward to that book, the editors state: Here we have Kris Slade and his daughter Liz, two free and independent people, easily slip into an incestuous involvement for which they feel no guilt, ultimately involving Kris’ new wife Mona and her young son Curt.

Because these four people seek their values from within themselves and not from community opinion or the judgment of the majority, they manage to work out a viable and lasting relationship. This is not to say that the habits of the Slade family are commendable or that they should be imitated by everyone. Big Sister’s Little Brother merely illustrated a rare departure from social norms by an exceptional family. It is for each reacher to approve or condemn such behaviour. [ 61 ] In my view, this statement contained in the forward is simply incapable of converting the whole book to transgressive writing.

This situation is even more extreme in some of the other books. In some of the other books, the forward simply bears no relationship to the book itself. For example, in “ Ruth’s Little Runaways ”, the following appears in the forward: (Paragraph 1 on page 4) Even as you are reading this, in every state in the union children are being beaten, tortured, abused, assaulted, starved and raped by either their biological or legal parents.

And those pathetic youngsters must bear their pain and suffering in silence, for in most cases, the system of justice adults hold so dear has no provisions to protect the child from the father or mother, and the police officials and courts are loath to listen to the pleading, agony-filled cries of the victims. (Paragraphs 2 and 3 on page 5) One of the most blatant fallacies in our legal system is the seemingly foregone conclusion that when the parents split up, married or not, the most logical assignment of the offspring is to the mother.

The revealing fact is, that in case after recorded case, women with children, deserted or having driven their man away, turn to other male companionship, prostitute themselves either for free or for money, and often engage in their sexual activities if not in the direct presence of their children, certainly within close enough proximity to them that the youngsters are well aware of what their mother is doing.

Even by the wildest stretch of the imagination, this cannot be considered wholesome. [ 62 ] On the basis of this forward, I believed that this book would contain some social commentary on how children are treated in our society and by our legal system following the separation and divorce of their parents. Nothing could be further from the truth. “ Ruth’s Little Runaways ” involves a story of two boys that are age eleven and twelve. Their mother is a prostitute. They witness her in some sexual encounters.

They hear her tell another man that she is going to get rid of the two of them, turning them over to the authorities. They decide to run away. When they get tired, they sneak into a garage and go to sleep in a car. A forty-eight year old woman finds them sleeping in her car the following morning. The woman lives in a large house with her daughter and her granddaughter, who is fourteen years old. The woman takes them into her house to give them something to eat. Thereafter, there is a description of one sexual encounter after another, as each of boys have sex with each of the women.

At the end, all five are jointly involved in a sexual encounter. All of the sex is consensual, and according to the book, all is enjoyable. At the end of the book, it is agreed that the boys will continue to live with the women, and everybody lives happily ever after. [ 63 ] As mentioned above, I reject the suggestion that one can determine that this is transgressive writing simply upon a few quotations contained in the forward of each book. I reject the evidence of Dr. Weir that this is transgressive writing. In my view, that opinion is based largely upon statements contained in the forward.

I am also deeply suspicious that this opinion was arrived at, not through a comprehensive analysis, but because of Dr. Weir’s very firmly held belief that no one should be prosecuted under this

section for possession of a fictional writing, and this prosecution ought not to be proceeding against Mr. Leugner. [ 64 ] I turn now to the second prong of this defence. Mr. Korpan argues that these books merely graphically describe sexual encounters, and a graphic description of a sexual encounter is not sufficient “to counsel or advocate” a sexual encounter.

[65] In the Crown’s brief, Mr. Hendrickson had a number of quotes from the texts of the books themselves. One of the quotes isfrom the book “Mother in the Middle”. That book involved a mother’s incestuous affair with her son. At page 186, the followingpassage appears: Cumming altogether, each of them giving to the rest, the ultimate fluids of their bodies, cementing together the one family above allothers who knew a good fuck when they found it. As long as each of them would ever live, beyond that point, they were content in theknowledge that sex and love made for the very best of families. [66] Mr.

Hendrickson refers to the case of R. v. Beattie, (ON CA), [2005] 75 O.R. (3d) 117 (Ont. CA). On thebasis of this decision, he argues that there need not be an express statement counselling or advocating the sexual encounter. The messagemay be implicit. On the basis of passages like the one just above quoted, Mr. Hendrickson argues that the implicit message is thatincestuous sexual encounters are good and certainly not harmful, are enjoyed by all, and bring families closer together, and as a resultought to be encouraged. [67] In my judgment, the case of R. v. Beattie is “on all fours” as it deals with this issue.

On the basis of the Beattie decision, Iaccept Mr. Hendrickson’s argument that these books put forward an implicit, if not express message, that incestuous sexual encounterswith children are good and ought to be encouraged. The clear and implicit message is one advocating and counselling sexual activitywith minors that would be an offence contrary to the Code. [68] I begin by noting that following the Ontario Court of Appeal’s decision, there was an application for leave to appeal to theSupreme Court of Canada. The application for leave was refused. Further, in the case of R. v.

Missions, 2005 NSCA 82 , 2005N.S.C.A. 82, the Nova Scotia Court of Appeal quoted at length from the Beattie decision, and expressly followed the Beattie decision. [69] The Ontario Court of Appeal decision in Beattie was written by Mr. Justice Laskin. He reviewed the stories in question, andhis judgment contains a number of quotes from those stories. I can’t help but note how similar those quotations are to innumerablepassages in these stories.

The Ontario Court of Appeal then stated as follows: 19 The Crown acknowledges that the trial judge referred to the paragraph from McLachlin C.J.C.’s reasons in Sharpe, where shediscussed the meaning of “advocates” or “counsels”. It also acknowledges that the thirty-three stories do not explicitly advocate orcounsel sex with children. But the Crown submits that the trial judge failed to appreciate that the message prohibited by s. 163.1(1)(b)may be given implicitly as well as explicitly.

The Crown argues that the trial judge failed to consider whether the stories activelyinduced or encouraged sex with children by describing it as a normal, commonplace, and a positive experience most children want andbenefit from. The Crown submits that in applying Sharpe, the trial judge did not consider whether the stories implicitly send themessage that sex with children can and should be pursued. I agree with the Crown’s submission. 20 The trial judge relied heavily on the retrial in Sharpe, where Shaw J. acquitted the accused on two counts of possession of childpornography, consisting of written material.

Shaw J. concluded that the material “glorified” sexual acts with children, but did notactively encourage the commission of those acts. He accepted that “where written material is simply a thinly disguised exhortation toseduce children or to otherwise make them prey to sexual crimes, such writing may well advocate or counsel such crimes”, but held thatthe writing he reviewed did not do so. Instead, “these writings simply describe morally repugnant acts.” 21 In acquitting Mr. Beattie, the trial judge accepted Shaw J.’s analysis and the submissions of Mr.

Beattie’s counsel that to fall withinthe scope of s. 163.1(1)(b), the material must overtly promote the commission of sexual offences with children. This is the critical part ofthe trial judge’s reasons: [Counsel for Mr. Beattie] contends the material must be overt in promoting the commission of sexual offences in order to fall within thereach of s. 163.1(1)(

b) of the Criminal Code. I agree with the submissions of counsel for Mr. Beattie and adopt the analysis of Justice Shaw in Sharpe. It is not enough that thematerial, in addition to describing the event, characterizes the criminal sexual activity as enjoyable and the child participants willing.

Inmy view that does not equate to active inducement or encouragement. 22 The trial judge’s reasons suggest that because the stories are not accompanied by the express statement “you should commit criminalsexual acts with children”, they do not actively induce or encourage the commission of sexual offences with children and are thereforenot child pornography. His reasons suggest that to make out active inducement or encouragement, more is required than the descriptionof sexual activity as enjoyable and of the children as willing participants. I do not agree with this approach. In my view, the trial judge’s

approach reflects two errors. 23 First, the trial judge’s approach does not recognize the active inducement or encouragement may come from a message that is implicit in the stories themselves. Material that describes sex with children as enjoyable, normal, and beneficial, and the children as willing may send the message that sex with children can and should be pursued.

An entirely different business – the advertising industry – uses implicit messages all the time to persuade customers to buy a company’s products. 24 Second, even if the trial judge was correct in saying that the message “children enjoy criminal sexual activity” cannot be equated with active inducement, the stories do not just send this message to the objective reader. As I said earlier, the stories send two messages: children want and enjoy sex with adults; and those adults who know and love children the most and are most responsible for their upbringing routinely have sex with them because sex is good for them.

The trial judge considered the first message but took no account of the second. Yet, this second message is central to the question whether the stories amount to child pornography. 25 In my view, the trial judge was obliged to consider whether the two messages combined implicitly send the further message that “sex with children can and should be pursued,” and therefore actively encourage criminal sexual activity.

The trial judge’s failure to do so amounts to an error of law. [ 70 ] On the basis of the above, I conclude that the material contained in this group of books does counsel and advocate sexual activity with children that is an offence under the Criminal Code . As a result, this material meets the definition for child pornography. Mr. Leugner clearly was in possession of child pornography. [ 71 ] The Defence then argued that the accused has a defence under s. 163.1(6) of the Criminal Code , which reads as follows:

(6) No person shall be convicted of an offence under this

section if the act that is alleged to constitute the offence: (

a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (

b) does not pose an undue risk of harm to persons under the age of eighteen years. [ 72 ] Defence counsel refers to the case of R. v. Kuneman, [2003] O.J. No. 2459 (C.A.) , and says that this

section should be liberally interpreted. Clearly he is correct in this assertion. However, in my view, a liberal

interpretation of this

section should not result in the

section being strained beyond its plain and ordinary meaning. [ 73 ] The

section provides a defence if the accused has possession of the material for a legitimate purpose and there is no undue risk of harm to persons under the age of eighteen years. Because the word “and” is used, I conclude that both of these aspects must co- exist. The accused must have a legitimate purpose, and there must be no undue risk of harm. [ 74 ] Defence counsel submits that there is absolutely no evidence that the accused distributed these materials to any other person. The materials were not on-line and could not be accessed by any other person.

The Crown agrees that there is no evidence that these materials have been given to any other person or that any other person has access to them. Given the evidence of Mr. Leugner to the effect that he is a collector of these materials, I am inclined to agree that these materials do not pose a risk of harm to any person under the age of eighteen years. [ 75 ] Can it be said that Mr. Leugner possesses these materials for a legitimate purpose relating to education? In my view, that cannot be said.

I interpret the whole of this subsection to read as follows: “No accused person shall be convicted of this offence if that accused person, in possession of the impugned materials, has a legitimate purpose for the possession of those impugned materials related to education.” In my view, the evidence of Mr. Leugner falls short of meeting this interpretive test, and thus the accused cannot avail himself of the defence under this subsection. The evidence of Dr. Weir was to the effect that these materials could be used for a legitimate educational purpose. I accept that. However, it cannot be said that Mr.

Leugner had these materials in his possession for that legitimate educational purpose. He had these materials in his possession because he was collecting them. He is not, and has not, been associated with any post-secondary educational institution. He has not been engaged in any research on behalf of any institution. He has not been involved in any research regarding these kinds of materials.

His evidence, taken at its strongest, is to the effect that he has a hope or a future intention that at some time in the future he will donate these materials to an educational institution, so that they may then be used for this legitimate educational purpose. The section, on its plain and ordinary wording, does not contemplate or allow for possession of these materials so that they will be available and may, at a future time, be used for an educational purpose. In my view,

this

section requires that the possessor of those materials have and be pursuing that legitimate educational purpose. Simply stated, the accused’s evidence is insufficient to bring him under or within the required bounds to avail himself of the statutory defence. [ 76 ] As a result, I have concluded that Mr. Leugner is in possession of child pornography and that the statutory defence contained in subsection (6) is not available to him. As a result, I must find him guilty of the charge.

Summary [ 77 ] In summation, I find Mr. Leugner guilty of Counts #1 and #4 on the information, and find him not guilty of Counts #2 and #3. Concluding Comment [ 78 ] I wish to express my great thanks to both counsel for the cooperation that they showed in the presentation of this case. They were very cooperative in arranging dates, and in allowing the other considerable latitude in the presentation of their case. This made hearing this case much easier and more enjoyable. I also express a very great thanks for their very detailed and competent submissions, both in writing and verbally.

Dated at Moose Jaw, Saskatchewan, this ___ day of May, 2010. _____________________________________________ D.J. Kovatch, J