R. v. Schacter, 2018 ONCJ 371

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3) , read as follows: 486.4

(3) Child pornography. — In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Schacter , 2018 ONCJ 371 DATE: 2018·05·31 ONTARIO COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN — AND — STEPHEN JOSEPH SCHACTER Before Justice Susan M. Chapman Heard on February 1, 2 and 28, 2018 Reasons for Judgment released on May 31, 2018 G. Gaganiaras................................................................................................. Counsel for the Crown J. Kappy...................................................................................................... Counsel for the Accused Chapman, J.: Overview [ 1 ] On November 6, 2015, the accused attended the Lawrence Square Employment & Social Services office.

He sat at a publicly available computer and inserted a USB drive into the computer. Witnesses observed the accused accessing images of a young boy in just his underwear posed in a manner that they viewed as sexually suggestive. The staff approached the accused. Police were called, witnesses interviewed and the case was subsequently turned over to the child exploitation unit. The accused was subsequently identified and a warrant was obtained for his residence in Toronto.

Upon execution of the warrant on December 16, 2015, numerous images were found on three USB keys, 48 of which are alleged to constitute child pornography. [ 2 ] Mr. Schacter was subsequently charged with possession of child pornography contrary to

section 161.1(4) of the Criminal Code . At the outset of trial the accused brought an application to have the search warrant found unlawful and the evidence recovered excluded pursuant to ss. 8 and 24(2) of the Charter . I rejected this application in a Ruling dated January 26, 2018. The trial took place on February 1, 2 and 28th of 2018. The central issue to be decided is whether the material possessed by Mr. Schacter constitutes child pornography within the meaning of the Criminal Code . I find that it does for the following reasons.

Facts The Employment Centre Incident [ 3 ] On November 6, 2015, at approximately 11:30 a.m., a male, later identified as the accused, walked into the Lawrence Square Employment & Social Services (the “employment centre”) at 330-700 Lawrence Avenue West in the City of Toronto. Members of the public can enter this location and search for jobs. The unit contains public access computers and printers. [ 4 ] Celia Menezes is a 31-year old case worker who was working at the employment centre.

She testified at trial that she was at her desk when she heard two other staff members discussing inappropriate images on a computer at the centre. As a result of the conversation, she approached the male being discussed and stood right next to him, perhaps within 2-3 inches, on his right side. Though she was standing so close to him, the accused did not appear to notice her as he was focused on what he was looking at on the computer. She testified that she observed the accused opening up different files on the computer and looking at three separately opened photos during the time that she observed him.

She was only able to describe two of the photos that she saw: 1. A young boy with dirty blond hair in the style of Justin Bieber (though a bit longer and parted to the side), in his underwear, wearing a sport jersey on top, just standing in a posed position with his arms down. She estimated the age of the child to be eight years old. The photo appeared to be professionally taken. 2. The second image was of the same boy, again posed in a professional looking photo with an artificial backdrop, with a faint and forced smile, wearing only a shirt and underwear.

He was posed with his hand on his hips and his elbows pushed backwards. [ 5 ] Ms. Menezes testified that she was shocked and upset by the images as she has a son about the same age as the child depicted. As she stood there, a security guard, Mr. Jarnathan Premanathan, also approached and stood next to her. At this time the accused started closing up the files on the computer. Mr. Premanathan testified that he walked past the accused two times. On both occasions, the male “minimized the screen almost immediately”. Mr.

Premanathan observed the accused “looking at images of a Caucasian boy around the ages of 8 – 10 years old wearing underwear only.” He saw that the accused “scrolled through two pictures where the child was in [sic] an inappropriate posing position”. Mr. Premanathan and Ms. Menezes both advised the accused that his actions were inappropriate and that the computers were meant for job-searching and related activities only. [ 6 ] Ms.

Marcella Falconi, a supervisor, was directed towards the accused after being alerted by staff that an individual in the employment centre had been viewing images that they felt were disturbing. Ms. Falconi and another staff members approached the male and asked to speak with him in an interview booth. The accused indicated that he was deleting family pictures that belonged to his friend. When the supervisor asked him if he had the pictures on a USB stick, the Applicant indicated that he did. He was asked not to

repeat this conduct again at the centre. The male agreed and said he would only visit the centre to look for work. He left the area at approximately 12:00 p.m. The police were eventually called and the accused identified on a later date. The Residential Search [ 7 ] Following the incident at the employment centre, the police sought and obtained a search warrant for Mr. Schacter’s home. Police executed the warrant on December 16, 2015. The officers found three USB keys inside a desk, located in Mr. Schacter’s bedroom. In a very brief preview of one of the USB keys, officers observed that Mr.

Schacter had a very large and organized collection of images of pre-pubescent boys in various states of dress. Two images observed were of a prepubescent boy, approximately 10 years old, lying back wearing only underwear. The boy’s legs were spread apart and his genital area was at the forefront of the image. The outline of the child’s penis was clearly visible in both pictures. As a result, Mr. Schacter was arrested and charged with possession of child pornography. [ 8 ] Officers investigated the contents of the USB keys further.

Thousands of pictures of young boys were found on various devices belonging to the accused during the search of his residence on December 16, 2015. Detective Constable Manherz testified that he would classify the images into three categories: a. Child pornography (which the officer defines as a sexualized picture of a child, intended to stimulate an audience, where the sexual organ is the main focus); b. Child erotica (a sexualized picture of a child, intended to stimulate an audience)/ age difficult (the age of the person depicted is not clear from the image); and c.

Everything else. [ 9 ] Upon further investigation of the contents of the USB keys, officers identified 148 images of what they classified as category 1, child pornography. Of those 148 images, 95 of the images were accessible to any user of the USB key. Fifty-three of the images were not accessible. And of the 148 images, 47 were unique images and 101 were duplicates. The Law that Governs [ 10 ]

Section 163.1 (1) of the Criminal Code states : 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;… [1] [ 11 ]

Section 163.1 was added to the Criminal Code in 1993. This

section creates various offences relating to child pornography, which is defined in subsection (1). Subsection (4) creates the offence of simple possession of child pornography. Subsections (5) to (7) create certain defences, none of which are either relied upon or have an air of reality in this case. [ 12 ] In this case, the images in question do not involve outright nudity. For that reason, the accused is charged with the offence as defined in s.163.1(1) (a)(ii).

In order to be found guilty of the offence, I must be satisfied beyond a reasonable doubt that the visual images in question depict, as their “ dominant characteristic ”, “ a sexual organ or anal region of a person under the age of eighteen years ”, for a “ sexual purpose .” (emphasis added) [ 13 ] The leading case interpreting

section 163.1 (1) is R. v. Sharpe . [2] In Sharpe , the Supreme Court of Canada entertained a constitutional challenge to the provisions and in so doing reviewed and interpreted the ambit of the section, including what is meant by the terms “dominant characteristic” and “sexual purpose” as set out in subsection 163.1(1) (a)(ii). The court held that: “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.” [3] [ 14 ] Also in Sharpe the court, in reviewing Parliament’s purpose for enacting the legislation, determined that it was to prohibit: “Child pornography that poses a reasoned risk of harm to children.

The primary definition of "child pornography" does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material.” [4] [ 15 ] When the images in question do not involve outright nudity, does this factor on its own negate the existence of a sexual purpose? A different but related question is whether the sexual organ or anal region of the child must be exposed in order to demonstrate a sexual purpose/dominant characteristic.

I will address both issues in considering what is meant by “dominant characteristic” and “sexual purpose” more generally in the law of sexual offences against children, and child pornography in particular.

A. Dominant Characteristic [16] In assessing the dominant characteristic of the representation, the question is whether a reasonable viewer, looking at thedepiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ and/or analregion. In construing the term “depicted”, an objective test must be applied, such that a person would be “depicted” as under the age ofeighteen years if a reasonable person viewing the material would perceive the person as under eighteen years of age[5].

In determiningwhether a sexual organ is the dominant characteristic of the material, the following factors may be considered: 1. The number of images of the genitals or anal region; 2. The characteristics of the images; 3. The context in which the images are taken. [17] Applying the principles of statutory

interpretation, sexual organ must mean something more than a “genital organ”, orthat phrase would have been used as it is elsewhere in the Criminal Code. As Justice Mocha determined in R. v. Meikle,[6] it also mustmean something more restrictive than any body part depicted for a sexual purpose or there would be no reason to specify sexual organ oranal region. It is a sexual versus a biological term. For example, the breast can supply food after reproduction but does not serve areproductive purpose. Society has sexualized the breast, therefore it is a sexual organ. On the other hand, the

definitions relating tovisual material do not extend to mere nudity. The statute is careful to define child pornography with reference to sexual context, notmerely anatomy, in contrast to some U.S. statutes[7]. [18]

Section 163.1 does not require that the sexual organ or anal region of the child be exposed. It merely requires thedepiction, 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. [19] Although nudity may be an important factor to consider, the lack of nudity is not determinative. The depiction of a childwho is not naked can in fact be pornographic. The Court in Rudiger addressed this point as follows: One can conceive of many examples of depictions of a young child who is clothed to at least some degree, but which nevertheless depicta “sexual organ or the anal region” of the child.

A wet bathing suit or the translucent material of an undergarment can easily adhere toand delineate a child’s sexual organs or anal region. Overtly sexual clothing, such as leather or bondage gear, can be designed to drawattention to the sexual organs or anal region. So too can the position a child is placed in. The photograph of a young girl, thoughwearing underwear, which has a manifestly sexual caption attached to it and which depicts that child with her legs splayed, so that thefocus is on her genitals, is unmistakably sexual to a reasonably objective viewer.

There is no confusion that the dominant characteristicof the photograph is on her “sexual organs”. … Thus the fact that the children in the videotape are partly clothed does not detract from the “dominant characteristic “of the photos or thefact that the photos have as their focus the child’s “sexual organs or anal region”. I am satisfied that the trial judge was correct inconcluding that the contents of the videotape met the definition of “child pornography” pursuant to s. 161(1)(a)(ii) of the CriminalCode.[8] [20] The issue of nudity was also addressed in R. v.

Chiasson[9], where the Court stated: I find that the Crown has satisfactorily proven beyond a reasonable doubt that the diaper pictures in issue, where they are photographs ofyoung children that are diapered but are posed unnaturally in what I find to be a sexualized pose, and having taken into account all of thecontextual factors I have reviewed, satisfies the definition of child pornography in the Criminal Code.

A reasonable viewer looking atthe depiction objectively of young children with their legs spread apart in an unnatural, sexualized pose, would see their dominantcharacteristic as a depiction of the child’s sexual organ or anal region, and that the dominant characteristic would be reasonablyperceived as intended to cause sexual stimulation to some viewers[10]. [21] In some cases, a child wearing underwear can be child pornography, as was held in the following cases: R. v. Wannamaker, [2011] A.J. No. 516 (Q.B.) [young girls scantily clad and posed in a provocative manner] R. v. B.(L.), 2010 ONCJ 450, [2010] O.J.

No. 4224 (C.J.) [an image not showing, but suggesting,

an act of fellatio] R. v. D.C., [2009] N.B.J. No. 389 (C.A.) [the clothing in this case was wet or “see through” such that the child’s “organs” were visiblethrough the clothing.] R. v. Y., 2015 NSPC 19 , 2015 NSPC 19 (Y.J.C.) [“bra on” photo of a 16 year old girl’s breasts]

[ 22 ] A number of principles have emerged from the case law considering what constitutes the depiction of a sexual organ or the anal region of a person under the age of eighteen years as a dominant characteristic of an image: • Lips and eyes are not sexual organs as the

section should be interpreted with restraint to avoid overreach. As stated in Sharpe : “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).” [11] • Sexual organs can include pubescent breasts. [12] • Genital and buttock regions can be sexual organs whether clothed or not. [13] • The number of images displaying a sexual organ or the anal region of a person under the age of eighteen years can lend itself to a finding of a dominant characteristic. [14] • The context of the entire collection. [15] • 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 photos etc. [16] o Whether the focus on the genital area or anal region seems to be a deliberate intention to emphasize the genitals or anal region [17] ; and o Whether there are captions or other methods used to highlight the genital and anal regions.

B. Sexual Purpose [ 23 ] The phrase “sexual purpose” has been interpreted by the Supreme Court as meaning “reasonably perceived as intended to cause sexual stimulation to some viewers”. The factors pointing to a sexual purpose can overlap with those that demonstrate “dominant characteristic” so long as both characteristics are proved by the Crown beyond a reasonable doubt. [ 24 ] The issue of what constitutes a “sexual purpose” was recently addressed by the Ontario Court of Appeal in R. v. Jarvis .

Although Jarvis was a case of voyeurism, the term “sexual purpose” is used in both sections of the Code as an ingredient of the offence when committed in a particular way. Voyeurism can be committed in three circumstances, two of which involve depictions of nudity or sexual activity and one which does not. The court stated as follows: The third circumstance is where the observation or video is made for a sexual purpose. If that third circumstance also required nudity as a component, it would be redundant.

Therefore, while nudity may certainly be relevant to an analysis of the sexual purpose of the video, the fact that the person is clothed cannot be a factor that negatives that purpose. If the person were nude, the charge could be laid under paragraph (1)(b).

Because observing or visually recording for a sexual purpose is a separate offence, it is clear that it can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose. [18] [ 25 ] In assessing the correctness of the trial judge’s conclusion in Jarvis that the images in question did not evidence a sexual purpose, the court found as follows: “This was an overwhelming case of videos focused on young women’s breasts and cleavage.

The trial judge made two errors of law in his analysis. First, he erred by suggesting in his

interpretation of the sexual purpose provision that, taken on its own, the lack of nudity or sexually suggestive clothing or poses could derogate from the sexual purpose of the videos that were focused on breasts and cleavage. Subsection

b) of the office of voyeurism specifically makes it an offence to surreptitiously observe or visually record a person who is nude. Subsection (

c) requires only that the observation or recording be ‘done for a sexual purpose’.

Second, he did not identify any reasonable inference other than that the purpose of the videos was sexual. In R. v. Taylor , 2015 ONCJ 449 , the accused took pictures of women’s buttocks while they were sunbathing in thong bathing suits on a beach. When considering the sexual purpose component of the offence of voyeurism, the trial judge concluded that he could not discount the possibility that the pictures were taken for aesthetic reasons as some artists do. In this case, one would have to speculate to find any such inference arising from the evidence or lack of evidence in this record.” [19] [ 26 ] In R. v.

Jarvis the Ontario Court of Appeal mandates that a conclusion that photos are intended for a sexual purpose, that is to cause sexual stimulation, “must be assessed on the totality of the circumstances”. [20] In Sharpe the highest court concluded that for the charges to arise under “explicit sexual activity” [21] they must be: “acts which viewed objectively fall at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age.” [22] The point is made by the British Columbia Court of Appeal in R. v.

I. (J.E.) , [23] that: “Subparagraph (ii) does not require that the images be for an extreme sexual purpose for the offence to be complete.(…) In the case of s-s. (ii), if the dominant characteristic is for a sexual purpose, depictions of sexual organs or anal regions of children are extreme without more.” [24] [ 27 ] A review of the case law would suggest that there are a number of general factors a court may rely upon in determining whether or not the material in question evidences a sexual purpose, including: a. The nature of the material; b. The quantity of the material; c.

The circumstances in which the material was created; and, d. The overall context of the material. [ 28 ] Specific factors that the courts have referred to which can lead to the determination that the photos in question exhibit a sexual purpose include: 1. Context: [25] whether the images are part of a series of sexual materials, how many other photos were found, what is depicted in the other photos, what does the “album” of photos found suggest? 2. Sexual Caption: [26] a photo that otherwise might seem innocent can be captioned to suggest it is unmistakably for a sexual purpose. 3. Nudity. [27] 4.

Sexual contact or sexual activity. [28] 5. Angle of the camera: is it pointing down on women’s breasts. [29] 6. Lack of biological connection. [30] 7. All of the photos depict the same sex. [31] 8. Background of the photo. [32] 9. Existence of a watermark or logo indicating where the photo originated. [33] 10.

Posing in provocative ways. [34] [ 29 ] On the other hand, there are factors that point away from a determination that the photos are for a sexual purpose, most notably perhaps is whether or not they include non-genital depictions: [35] for example, if most or all of the photos include the face or entire body of the child. [ 30 ] One final point to be made is that while a court must consider context of the overall collection, the dominant characteristic and sexual purpose test applies to each individual photograph as well.

Therefore, it is not available to argue “that an overtly and unequivocally pornographic depiction, regardless of how explicit, loses its dominant characteristic simply because it is interspersed with a volume of other materials.” [36] As the court stated in Rudiger : “Those photos which are unmistakably pornographic are simply that.” [37] Application of the Law [ 31 ] Upon their investigation of the contents of the USB keys found in Mr. Schacter’s home, officers identified 148 images they classified as child pornography. Of those 148 images, 95 of the images were accessible to any user of the USB key.

Fifty-three of the images were not accessible. Of the 148 total images, 47 were unique images and 101 were duplicates. The Images

[ 32 ] In a document labelled Exhibit 5B, D.C. Manhurst sets out detailed descriptions of 37 of the images found on an USB device in the accused’s residence. The document was filed with the court as representative of the personal opinions of the officer only and not as any sort of expert opinion evidence. That being said, I have reviewed the descriptions of the images provided by the officer as against the images themselves and I find the detailed descriptions to be entirely accurate, with very few and minor exceptions as outlined below.

Accordingly, Exhibit 5B can be consulted as factually accurate descriptions of the images located at the accused’s residence and categorized by the officer as child pornography, as opposed to child erotica/age difficult. [ 33 ] The images collected by Mr. Schacter are photographic representations – namely photographs of young boys. It is clear from looking at the images that the children are under the age of 18 years. The vast majority of the children appear to be between the ages of 8 and 12 years old.

In this case, 148 total images (47 unique images) are all of sexualized poses: legs spread and hips thrust out towards the camera in a provocative manner, lying on their backs with their legs spread. The images are professional photos. In all the images the focus is on the boy’s pose. The viewer’s eye is drawn to the penis or groin area. [ 34 ] A couple of the images are representative of the overall collection [38] . For example, the first image identified in Exhibit 5B, is that of a prepubescent male, approximately 12 years old, wearing a black bikini brief Speedo bathing suit.

The male is leaning back on his right elbow, his right leg appears to be in a pool and the left leg is bent up. The child’s legs are slightly separated and the outline of the boy’s penis is evident [39] against his left leg. This same image appears in 9 different places on the accused’s USB devices. [ 35 ] Image 32, described on page 10 of Exhibit 5(

b) and found on an USB drive located in the accused’s home, contains an image of a prepubescent male, based on the absence of body hair and the lack of muscular development in his thighs, dressed in a white shirt, blue shorts and white underpants. The boy, who is sitting with his legs splayed, is only visible from the navel area to just above his knees. The child’s underwear is clearly visible through the bottom of his shorts and he is experiencing an erection. The erection, which is outside of the shorts, is pushing against the underwear and the outline of the head of the boy’s penis is visible.

This same image appears in five different locations on the devices located in the accused’s home. [ 36 ] The sexual purpose of the images possessed by Mr. Schacter is evidenced in numerous ways: a. The content of the images on the USB drive as described in Exhibit 5(b), including numerous organized and categorized folders where the images are found; b. The quantity of images found; c. The images are not the type of photographs that a parent would tend to have of their child innocently cavorting in his or her underwear or bathing suit.

The images are professional photos of sexualized poses – legs spread and hips thrust out towards the camera in a provocative manner, lying on their backs or sitting up with their legs spread; d. Many of the images found on the USB drives, that are not relied upon by the Crown as meeting the definition of child pornography, are still overwhelmingly sexualized images of young boys; e. Though there is no onus on the defence to prove anything, there is a complete absence of a reason other than the obvious reason of sexual stimulation, for Mr.

Schacter possessing the number and nature of images found on his devices. [ 37 ] The images in Mr. Schacter’s collection are clearly sexually exploitative of the children in them, even though they are wearing underwear or bathing suits. They are there for no other purpose but for sexual gratification of a certain audience. The sexual organs are the dominant characteristic of the photos. Of particular note: - All of the photos show outlines of the penis’ and not merely a “bump”, as counsel put it; - #4 and #5 show a translucent bathing suit, where the child’s penis is visible through the suit.

The shaft of the penis and the outline of the scrotum are pressed against the bathing suit; - #8 a boy wearing a Santa hat and red housecoat and red spandex-type shorts reveal the shaft of the penis and the scrotum of the child. - #19 – a boy playing in a pool – only enough water to get him wet, but he is not swimming and playing – the groin area takes up the same space as the head and the groin is clearly the focus of the picture. - #31 a boy in a blue bathing suit with legs splayed while chewing on something wrapped around his finger, in a teasing pose, clearly done for a sexual purpose. - #32 is the most obvious example of child pornography in that it is a photo of a young boy’s groin area only and the head of the penis and the urethra of a circumcised penis that looks to be semi erect.

That this is a depiction of a young boy is clear from the absence of body hair and immature muscular development of the subject. [ 38 ] The defence argue in this case that the Crown has failed to prove actual harm to the children depicted in the images in question. In Sharpe , the majority of the court, in upholding the constitutional validity of the section, determined that there is a rational basis for concluding that possession of child pornography may create cognitive distortions that make the abuse of children seem good and normal; and that it may fuel fantasies that make pedophiles more likely to offend.

Accordingly, images that meet the statutory definition of child pornography are inherently harmful and more need not be established.

[ 39 ] All of these images were organized and categorized with names and folders. They are not organized by fashion style, but are organized by child. The images have watermarks on them suggesting that they are professionally produced. The images Mr. Schacter had on his USB keys only serve one purpose: to normalize and utilize the objectification of children as sexual objects for the purpose of sexual gratification.

Accordingly, I find that the Crown has proven beyond a reasonable doubt that the accused possessed child pornography, namely each of the 37 [40] unique images in question, and accordingly, I find him guilty of that offence. Date: May 31, 2018 Justice Susan M. Chapman [36] Ibid at para. 140.