2016 QCCQ 16383, 2016 QCCQ 16383

Translated from the original French R. c. Houle 2016 QCCQ 16383 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF CHICOUTIMI LOCALITY OF CHICOUTIMI “Criminal Division” No.: 150-01-034672-114 DATE: December 6, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE JUDGE PIERRE SIMARD ______________________________________________________________________ THE QUEEN Complainant v.

RÉMI HOULE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant Rémi Houle pleaded guilty to charges of accessing child pornography and possession of child pornography. The materiel in question was located on the accused’s computer. [ 2 ] Rémi Houle contests the characterization of a portion of the material discovered on his computer as child pornography.

However, when he entered his guilty plea, he agreed that the Court would determine whether or not these elements constituted child pornography and that eventually this determination would be used at the time of sentencing. [ 3 ] The only issue in this judgment concerns whether a portion of the files found on Rémi Houle’s computer may be characterized as pornographic.

BACKGROUND chronology [ 4 ] On August 4, 2011, Rémi Houle went to the Sûreté du Québec detachment in Chicoutimi for questioning about an incident that occurred on February 11, 2011, at the Valinouet ski resort. [ 5 ] The incident in question was the following: On February 11, 2011, an individual identified as Rémi Houle gave two minor girls some cans of energy drink on which he had added his name, telephone number and email address. The parents of one of the girls found this incident strange and complained to the police.

The police, seeking clarification and wanting to hear the accused’s explanation, called him in for August 4, 2011. [ 6 ] During questioning, Rémi Houle let it slip that he might have child pornography on his computer at home. A search warrant for his home was then obtained and the police seized the accused’s computer.

[ 7 ] An analysis of the contents of this computer revealed files that the police considered to be child pornography. A first group of files comprising nine videos and two image files was without a doubt child pornography, which the defendant acknowledged at the time of his guilty plea. [ 8 ] A second

part comprised approximately 9,360 image files of prepubescent girls. The defendant Houle contests the characterization of these images as child pornography. These are what the parties called “modeling” photos. [ 9 ] Charges were laid accordingly.

The trial took place over a period of three and a half days intermittently, but it was interrupted during the prosecution’s case by a guilty plea. [ 10 ] As the two parties agreed that a presentencing report was required, it was agreed that, to offset any ambiguity during the defendant’s meeting with the probation officer, a determination would be made as to whether the material referred to as “modeling” photos constituted child pornography. [ 11 ] The defendant Houle’s contestation is based on the following points: - There is no nudity in the photos - There are no explicit sexual acts - The investigating sergeant’s opinion seemed to be mixed. description of the material seized - the analyst’s testimony [ 12 ] Sergeant Densouriga Phouttama, a Sûreté du Québec investigator assigned to the technology surveillance department, analyzed the material seized. [ 13 ] Sergeant Phouttama discovered that the computer belonging to Rémi Houle contained nine video files and two image files that undeniably constituted child pornography.

In these different recordings, nudity and the performance of acts of a sexual nature are undeniable. [ 14 ] Sergeant Phouttama also found the 9,360 image files of “modeling” photos, which are the subject of this decision. Sergeant Phouttama described these photos as follows: they were of prepubescent, scantily dressed girls in sexually suggestive poses. [ 15 ] The Internet address for these files is “Farah-model.com”. [ 16 ] Sergeant Phouttama performed some searches on Google to check the website named Farah-model.com.

This search led him to a specific site, Farah-model-sweet model. [1] He discovered what he called 68 series or albums identical to the series he found on the defendant’s computer. [ 17 ] He also found other series and noted that the Farah-model-sweet model site is a pay-per-view website. - viewing of the material at the hearing [ 18 ] An examination of the “modeling” photos was conducted at a hearing during the trial.

A portion of these photos was viewed by the undersigned; Rémi Houle and his counsel acknowledged that what was shown in the hearing room accurately represented the material at issue as a whole. [ 19 ] The following characteristics were noted: 1. The subject of each photo is a prepubescent girl; most of the time she is alone, and she is wearing rather sexy lingerie and posing suggestively. 2. The photos are grouped into series. The same girl is in several dozen photos presented in the following order: the sequence begins with more or less inoffensive poses.

Gradually, the poses become more suggestive and generally end with close-ups of the girl’s genitals or her buttocks. The young model’s poses and the framing of the shots reveal only her genitals or buttocks. The girl always wears her underwear, which in some cases, when seen from the back, is made of nothing more a filament that is imperceptible when the photo is a close-up of her buttocks. [ 20 ] The same model appears frequently in the various series of photos, although there are several different young models in all.

ANALYSIS AND DECISION the law [ 21 ] The Criminal Code provides the following definition of child pornography when computer files are involved: 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 . [ 22 ] The first portion of the material is indisputably caught by s. 163.1(1) ( a )(

i) of the Criminal Code . This portion includes the nine videos and two graphic images that show explicit sexual activity and nudity of young children, which the defendant kept as pornographic material. [ 23 ] The so-called “modeling” material, however, is caught by the following paragraph, i.e., s. 163.1(1) ( a )(ii) of the Criminal Code , which refers mainly to the concepts of “dominant characteristics” and “for a sexual purpose”. [ 24 ] In R. v. Sharpe , [2] the Supreme Court of Canada interpreted these terms and determined the procedure to follow where these elements are involved.

The analysis must be objective: Would a reasonable person, taking the context into account, see the dominant characteristic of the material concerned as the depiction of a child’s sexual organ or anal region and as intended to cause sexual stimulation to some viewers? [ 25 ] In the case law, the terms “dominant characteristics” and “for a sexual purpose” have been interpreted on a few occasions where the material at issue did not necessarily involve the nudity of young children exposed in this way. [3] Although nudity is usually an important factor, it has not been deemed essential to the characterization of visual material as pornographic.

The approach requires determining the dominant characteristic of the seized material and, in particular, whether the material emphasizes the genitals or anal region, regardless of whether the child is dressed or not, for an overall sexual purpose. The analysis must not be made according to the perception of how the accused used it; rather, the determination must be made objectively. application of law to this case [ 26 ] Do the 9,360 so-called “modeling” photos constitute child pornography?

The answer may be found by identifying the dominant characteristic of this material and objectively evaluating whether the depictions were created for a sexual purpose. [ 27 ] The 9,360 photos are divided into series, which all unfold the same way. A young girl is photographed when she is dressed. The first photos of each series are rather neutral. However, as the examination of the series progresses, the young girl’s poses and outfits gradually change. They become increasing provocative. The framing of the photo gradually and then exclusively focuses on the young girl’s genitals.

She is still wearing her underwear. However, when the photo frames her buttocks, the filament making up the back part of this

article of clothing disappears, giving the illusion of nudity. [ 28 ] The young girl’s poses are at that point exaggerated and her legs are spread, but there no sexual acts are performed or acted out. [ 29 ] However, it is clear that these photos progressively and systematically move their emphasis towards the genitals and the buttocks of the young girl. [ 30 ] The defendant never claimed that the material was artistic or educational.

Sergeant Phouttama’s description of the Farah- model.com website and the fact that is a pay-per-view site make such a conclusion unlikely in respect of the material in question. [ 31 ] It is clearly not advertising for a young girls’ clothing company. [ 32 ] It is clearly an exercise in exhibitionism. What is its purpose? It is reasonable to believe that the only purpose of these photos is to please people for whom they are a source of some sort of arousal or excitement.

This is what can be deduced from the website presentation, its pay-per-view format, the number of photos on the website, the number and type of files on Rémi Houle’s computer, the young girls’ poses and the framing of the photos. [ 33 ] The fact that the young girls are clothed at all times does not prevent the material at issue from meeting the definition in s. 163.1(1)( a )(ii). Admittedly, the “modeling” material may seem less offensive than the videos and images contained in the first portion of the material seized from Rémi Houle’s home.

In child pornography cases, as in other cases such as those involving sexual assault, the terms cover a wide range of situations ranging from the most extreme to the most benign. In the case of the “modeling” photos, it is true that the pornographic content of these photos is not as extreme as what can be seen in the initial material seized. Nevertheless, they overstep the line between material that is child pornography and material that is not. [ 34 ] Each of the series put forward and all of them together constitute a whole in which the person who masterminded the photos sought to depict a progression.

Therefore, all of the photographs constitute illegal material. [ 35 ] As for the argument based on Sergeant Phouttama’s opinion, I would like to note that: - Sergeant Phouttama did not assert that it was not child pornography; - Declaring whether or not material is child pornography is

an act of characterization that is ultimately up to the judge. FOR THESE REASONS, THE COURT: DECLARES that the 9,300 so-called “modeling” photos constitute child pornography. __________________________________ PIERRE SIMARD, J.C.Q.

Mtre Jean-Sébastien Lebel criminal and penal prosecutor Mtre Jean-Claude Ouellet counsel for the defence Date of hearing: November 11, 2015 October 18, 19 and 20, 2016