R. v. Bruneau, 2021 MBPC 66

CITATION: R. v. Bruneau, 2021 MBPC 66 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) S. Doe for the Crown ) - and - ) ) Michel Bruneau ) K. Gowenlock for the Accused ) ) Judgment delivered: ) November 23, 2021 Pollack S.P.J. [ 1 ] This trial concerns whether, from his jail cell, Michel Arthur Joseph Bruneau was able to make child pornography. At all material times this accused was incarcerated at Headingly Correctional Center (HCC) and he stands charged with:

a) making child pornography photographs while he was incarcerated at HCC in 2019;

b) possession of child pornography photographs found in his HCC cell on February 20, 2020;

c) two counts of failure to comply with an order that he not communicate with a teenage boy (

V) and V’s mother (

M) while detained in custody. The accused elected trial in this Court and entered pleas of not guilty to the two child pornography counts and guilty pleas to both counts of failing to comply with a non-communication order. [ 2 ] The accused and M had been in a relationship since V was six or seven years of age. They lived together in an apartment and the accused was like a stepfather to V. The context of this prosecution includes a previous prosecution of the accused, the details of which were provided in an “Agreed Statement of Facts”.

In the spring of 2019 the accused was found guilty of a series of charges involving the sexual abuse of V on almost a daily basis as well as obstruction of justice by having V attempt to recant his complaint of sexual abuse. [ 3 ] The unlawful communication was from HCC while the accused was pending or attending his trial. The prosecution say that the accused stayed in contact with V and M by telephone and by mail. They say that he managed to induce V to pose for photographs, some of which were pornographic, and that M willingly complied with the accused’s request that she take those photographs.

M would then deliver the photographs to the accused’s mother who mailed them to him at HCC. His mother did not testify. The defence say that none of the photographs meet the Criminal Code criteria for child pornography. [ 4 ] The prosecution produced logs of over 3,000 calls made to M or V from HCC by the accused. These calls were intercepted under ordinary HCC protocols. The overwhelming majority were unanswered attempts but there were about two dozen conversations recorded; in one, on November 2, 2019, M handed the phone to V and he had a short conversation with the accused.

With the consent of the defence, digital recordings and transcripts of those calls tendered by the prosecution were admitted as exhibits. Some of the conversation was in French and a translation was provided. I have no French language judicial skills. While counsel referred to the transcripts in their summations, no witness was asked by either counsel about tone, volume, inflection, nuance or recording quality.

Indeed no recording was played for any witness and no reference to the sound track of any conversation was made by either counsel. [ 5 ] The intercepted conversations do not appear to contain evidence that the accused sought pornographic photographs of the child. The only evidence about the accused seeking such photographs came from the testimony of V.

No letters written by the accused to V were produced in evidence. [ 6 ] V has been apprehended as a child in need of protection and M is prohibited from having contact with him; this is not surprising as I am informed that M faces prosecution for her alleged complicity in producing the photographs. On June 12, 2020 V was interviewed by a Winnipeg Police Service detective and, pursuant to Criminal Code , s.715.1 , a video recording of that interview was provided by consent. The recording was played in Court and he adopted its contents.

Against the background of the agreed fact that the accused stands convicted of having sexually abused V, I found V to be a witness who is just gaining insight into what he had undergone. He understood that the Court ordered the accused not to be in contact with him and admitted that he nevertheless “chose to be” in contact. Like many victims, he testified that he “felt a little bit bad for (the accused)” who he regarded as somewhat of a father figure. That said, he recalled the man saying “you don’t have to call me Dad”. V testified that “it was hard to say no” to the accused’s requests.

He agreed with the suggestion on cross-examination that he had conflicted feelings about the man and, at one point, he said that he felt ashamed of what he had done. [ 7 ] V’s interviewer was a female detective who established rapport easily. After much conversation about letters and phone calls from the accused to him and his mother, they talked about some specific pictures. He explained how the accused, both in letters and on the telephone, asked for photographs in sexualized poses.

This included the accused telling him that he wanted photographs of him unclothed and with an erection and that he would teach him how to masturbate. V testified that he left the letters in his dresser drawer when he was apprehended and taken to a foster placement. [ 8 ] The defence argued that his credibility on this important issue is suspect because, although he told the detective that the topic of masturbation came up on the telephone and in letters, there are no recorded conversations in evidence containing references to masturbation.

I do not find that to be a significant difference between an interview almost a year ago and his evidence in court about events at least two years ago. And it can be inferred that not all of the conversations were recorded and transcribed. [ 9 ] V presented in Court much the same as in the police interview. He is now a sixteen-year-old high school student. He was not particularly emotional or difficult to examine. He admitted being in error when corrected by defence counsel.

Keeping in mind the agreed fact that he was talking about his convicted abuser, that there are photographs that were repeatedly requested by the accused in phone conversations, that he stuffed something into his sweat pants to please the accused, I gave this witness a high credibility quotient. [ 10 ] What is significant is the accused’s conversation with M on the day after the photographs were seized. He told M about the seizures and that they were going to be turned over to “the crown attorney”. Then he asked M (in French) to confirm that she threw out his letters and she answered in the affirmative.

Why would he care about the letters? To ask the question is to answer it in light of V’s evidence about those letters. And none of this is in a vacuum; the transcripts contain several requests for photographs in November, 2019 and complaints about how long it has taken M to send them. [ 11 ] Over 80 photographs were seized. The prosecution say that four constitute child pornography. There is no evidence concerning the way in which the photographs were found other than that they were loose and under the accused’s mattress.

The prosecution presented them in twelve separate exhibits without explanation other than that the photographs in Exhibit 9 contain the alleged child pornography. The batches of photographs, some of which contain writing on the back, were presented loosely with the need for paper clips to separate the exhibits. Important evidence like this, particularly evidence that is required for more than one trial, should have been organized in a booklet in pages meant to hold photographs that could have been numbered. I will refer to the five Exhibit 9 photographs by description:

a) V is standing with a broad grin on his face, wearing a blue shirt and sweat pants; below his waist his sweat pants have a noticeable round bulge as if his stomach was distended.

b) V is standing with his head turned in a scowl, wearing a blue shirt, sweat pants and a toque; they appear to be the same clothes as in the previous one although, from the pose and poor quality of the image, I cannot say that I am certain whether the same bulge is there or that is just the shape of the waistband.

c) V is standing, wearing only sweat pants, pointing to his underarm with that arm raised.

d) V is wearing only black shorts, lounging against the back of a couch with what may be a slight smile but I am not sure.

e) V is wearing the same black shorts, lounging on a different couch with his back on the seat, his legs up against the back, and his eyes closed; [ 12 ] In producing M as a witness, the prosecutor stated that she was aware of her protection against self-incrimination and that her lawyer was present. She claimed that she hated the accused once she was arrested but she had no concerns about her son’s mail and telephone relationship with the accused, a man who was probably on trial during that time for assaulting her son sexually.

And she took several photographs for the accused, many of V and some with V and his sister. She was not concerned that he had her son’s mobile phone number; indeed she facilitated their phone calls when, in the presence of a child protection worker, she would hand her phone to V telling him that it was someone else calling when it was really the accused. V would then step out to the balcony to speak. This would indicate that not all of the calls from the accused are in evidence. [ 13 ] M helped the accused in other ways. Under his guidance, she and V were given fictitious names.

The transcripts of the intercepted conversations refer to a female named Monique, not M’s name; V was referred to as “Charlie” which is nothing like his given name. She used those names in writing descriptions on the back of the seized photographs. It is clear from the intercepted conversations that the accused was concerned about maintaining those pseudonyms. When shown the photographs, she spoke as if they were just a series of family photographs that included V, V’s sister and her. Certainly some of the photographs appear to be typical family photographs.

Regarding those in which V is wearing only black shorts, both she and V testified that there was nothing unusual about V dressing like that at home or lying about as the photographs depict. And there are others among the exhibits in which V is shirtless. [ 14 ] V was shown three Exhibit 9 photographs during his police interview – the first, second and fifth in my previous descriptions. He told the detective about the accused asking him to provide photographs while he had an erection. He did not want to do that so, instead, he took an

article of clothing and stuffed it in the waistband of the pants he was wearing. His pose demonstrates the extended abdomen at and beneath his waist. M claimed that she was unaware of V stuffing something inside his pants when she took the Exhibit 9 photographs and, considering what each picture depicts, that claim may be true. She certainly did not admit that she asked her son to pose in ways that would satisfy the prurient urges of the accused. She brushed off the poses as being just fun and denied any suggestion that she was cooperating with the accused to produce child pornography.

In my opinion, M’s credibility on that issue is not particularly relevant to the verdict in this case. [ 15 ] Other photographs depict V without a shirt. In some he poses as a bodybuilder might pose. In others he is wearing those black

shorts, described by M as boxer shorts that he often wears around the house; the prosecution argue that at least one of these depicts a pose in a sexualized position. Both M and V testified, however, that this was not a pose and was simply typical of how V might be found at home.

The defence say that the many other photographs provide some context for Exhibit 9 – that there was nothing special about some in which V is obviously just kidding around, just as there is nothing special about some from school and others with his sister and his mother. [ 16 ] It has been proved that the accused was involved in the production of the seized photographs. They exist because he wanted to have them in his cell. He did not just wish for them. He engaged M to agree to make them with her phone and he engaged V to be the subject of photographs.

When pressed on whether he was right about the letters, V responded firmly “I remember his letters” and I believe V. That is how the accused’s photographs came into existence. M then put the false descriptions on them and used the accused’s mother as an intermediary to mail them. It is therefore proved beyond a reasonable doubt that the accused is one of the makers of those photographs, including those in Exhibit 9. [ 17 ] Child pornography is defined by the Criminal Code, s.163.1(1) : In this section, child pornography means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (

i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; The photographs clearly show V, a person under the age of eighteen years, but he is not engaged in explicit sexual activity nor can it be said that a dominant characteristic of any photograph is the depiction of a sexual organ for a sexual purpose; accordingly it is against clause (a)(ii) that Exhibit 9 is to be tested. [ 18 ] Trial judges must approach that test with particular solemnity.

As McLachlin CJ noted in R. v. Sharpe, 2001 SCC 2 , this provision concerns “a substantial amount of material that endangers the welfare of children” (paragraph 72) and a substantial amount of responsibility falls on the trial judge, encapsulated by the panel in R. v.

M.B. , 2019 ONCA 237 (para. 13 ): A trial court’s analysis of which depictions fall under the definition of “child pornography”, including under s. 163.1(1) (a)(ii) of the Criminal Code , necessarily remains a fact and context-driven exercise, which, absent error, is entitled to deference from an appellate court. [ 19 ] The prosecution say that the application of the Criminal Code requires an analysis of the context in which photographs were obtained; some may appear equivocal when looked at individually but surrounding circumstances may determine that they are pornographic.

In this regard I begin with the majority decision in Sharpe at paragraph 50 : The objective approach should also be applied to the term “dominant characteristic” in s.163.1(1)(a)(ii) which targets possession of visual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age eighteen years.” The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region.

The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers. [ 20 ] R. v. Schacter, 2018 ONCJ 371 contains a helpful outline of the decision steps for a trial judge in the objective analysis.

Chapman J wrote, at paragraph 22: “A number of principles have immerged from the case law considering what constitutes the depiction of a sexual organ or the anal region of a person under the age eighteen years as a dominant characteristic of an image” and among them she cited these: • Genital and buttock regions can be sexual organs whether clothed or not. • The number of images displaying a sexual organ or the anal region of a person under the age eighteen years can lend itself to a finding of a dominant characteristic. • The context of the entire collection. • The characteristic of the images including: o The clarity of the image; o The proximity of the genital area or anal region to the camera; o The duration of the depiction of the genital or anal region; o An attempt to highlight the sexual organ or anal region by angle of camera, zoom or cropping of photographs etc; o Whether the focus on the genital area or anal region seems to be a deliberate intention to emphasize the genitals or anal region; [ 21 ] My viewing of the Exhibit 9 photographs objectively yields the conclusion that none clearly depicts V demonstrating a sexual

organ. If it can be said that what was stuffed into his pants is a “dominant characteristic” of one of those photographs, that characteristicis best described as cartoonish. While images can demonstrate a sexual organ under clothing, these do not. [22] Using the guidance found in the Schacter judgment, I consider the entire collection, the majority of which resemble what onemight find in a family album. None focuses on a sexual organ and many depict V’s entire body, sometimes shirtless and sometimes inshorts.

Perhaps the accused’s focus might differ but the test is an objective one and not what was in the mind of one particular viewer. [23] To seek a verdict in this case cannot ignore included offences and the count of making child pornography certainly includes thecount of attempting to make.

Subsection 24(1) of the Criminal Code criminalizes the attempt to commit an offence in this way: Every one who, having an intent to commit an offence, does or omits do anything for the purpose of carrying out the intention is guilty ofan attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Subsection 24(2) logically implies that mere contemplation of an offence is insufficient: The question whether

an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit theoffence, and too remote to constitute an attempt to commit the offence, is a question of law. [24] In R. v. Ancio, (SCC), [1984] 1SCR 225 McIntyre J explained the basis for an attempt, at paragraph 30: As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question, and the actus reus, thatis, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the moresignificant is the mens rea. In R. v.

Cline, supra, Laidlaw J.A. speaking for the Ontario Court of Appeal, said at p.27: Criminal intention alone is insufficient to establish a criminal attempt. There must be a mens rea and also an actus reus. But it is to beobserved that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessaryelement of the offence, in a criminal attempt that mens rea is of primary importance and the actus reus is the necessary element.

In making that latter point, McIntyre J continued at paragraph 31: Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without theperformance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in theintent. [25] In this case, it has already been demonstrated that a series of steps had already been taken in furtherance of the mens rea formaking child pornography: the accused had a method of making pornographic pictures of V by persuading V to pose while M operatedthe camera and saw to delivery.

What is clear, however, is that the photographs produced do not constitute child pornography but thatwas the only incomplete step in the accused’s actus reus. [26] Acquittal is not the only possible result because the accused’s final product is not child pornography. In the United States v.Dynar (SCC), [1997] 2 SCR 462, the Supreme Court considered the ultimate attempt case - whether a missingingredient of the crime was a defence to a charge of attempt. Cory and Iacobucci JJ wrote (at paragraph 73): The absence of an intended circumstance is irrelevant form the point of view of the law of attempt.

An accused is guilty of an attempt ifhe intends to commit a crime and takes legally sufficient steps towards its commission. Because an attempt is its very nature anincomplete substantive offence, it will always be the case that actus reus of the completed offence will be deficient, and sometimes thiswill be because an intended circumstance is lacking. [27] The defence argued that there was no mens rea on M’s part when she took the photographs, printed them at a drugstore andhanded them to the accused’s mother for mailing; certainly there is no suggestion of meas rea of the part of his mother.

In my opinion,those absences are irrelevant to the steps taken by the accused in furtherance of his intention to produce child pornography. [28] Accordingly I find the accused not guilty of making child pornography, guilty of attempting to make child pornography and notguilty of possession of child pornography. “Original signed by” Pollack S.P.J.