2018 QCCQ 19694, 2018 QCCQ 19694

Translated from the original French R. c. Ménard 2018 QCCQ 19694 COURT OF QUEBEC CANADA PROVINCE DE QUEBEC DISTRICT DE TERREBONNE LOCALITY OF Saint-Jérôme "Criminal and Penal Division" No: 700-01-145753-169 DATE : December 20, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE SOPHIE LAVERGNE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. LUC MÉNARD Accused ______________________________________________________________________ JUDGMENT ON APPLICATION FOR FORFEITURE (

Section 164.2 of the Criminal Code ) ______________________________________________________________________ [ 1 ] Further to a verdict of guilt on charges of having produced, accessed, and had in his possession text and graphic files of child pornography, and in addition of having made arrangements with another person to commit sexual assault against a child, the Prosecution seeks forfeiture of the seized material, alleging that it was used during the commission of the offences. [ 2 ] Obviously, it is as offence-related property that the Prosecution presents this application.

The offence-related nature of the items seized at the accused’s residence is not in dispute, and it is in fact on the record that they were used during the commission of offences of which the accused was found guilty. [ 3 ] A search at the accused’s home on February third (3rd), two thousand sixteen (2016), led to the seizure of the property (items 1 to 3), on which several graphic and text files containing child pornography were found.

Item 4 is a cellular telephone that was also seized the day of the search on the day of the arrest, which, according to the Prosecution, was used to commit the offence, to communicate with the undercover officer, among other things, on the day of the arrest. [ 4 ] Here is a more detailed description of items 1 to 4, which are the subject of this application for forfeiture. • ITEM 1: a black computer tower with no brand name or model, containing two

(2) Western Digital hard drives; • ITEM 2: a white computer tower with no brand name or model, containing two (2) hard drives; • ITEM 3: four

(4) DVDs containing child pornography; • ITEM 4: a silver cellular telephone, Rogers Pantech; [ 5 ] The application for forfeiture was filed further to the conviction of the accused on counts 2, 3, 5 to 8 and 11 to 13. [ 6 ] The accused no longer contests the Prosecution’s application in connection with items 2 and 3, stating to the Court that what was found on each of them can also be found on item number 1, so of no use for him. ISSUES IN DISPUTE 1- Is the property of which the Crown seeks confiscation (items 1 and 4), offence-related property within the meaning of the Criminal Code ? 2- Are the criteria in

section 164.2 all met? 3- Should the discretion awarded the Court by the use of the word MAY allow the Court to order partial forfeiture as the accused asks?

The accused opposes the application for forfeiture on the grounds that it is disproportionate and proposes partial forfeiture or alternatively the supervised transfer to a police officer of all the files on his computer that are not illegal to a new computer that he is prepared to supply, before disposing of item 1. The accused contests the application for forfeiture of item 4, on the grounds that the cellular telephone is not a smart phone and that it was used only to communicate with the undercover officer and in no way to store child pornography on it. OFFENCES [ 7 ] Offences prosecuted by way of indictment are among those specifically set out in

section 164.2 as giving rise to forfeiture following conviction. Here I cite

section 164.2(1): A court that convicts a person of an offence under

section 162.1, 163.1 , 172.1 or 172.2 , in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing (

a) was used in the commission of the offence; and (

b) is the property of (

i) the convicted person or another person who was a party to the offence, or (ii) a person who acquired the thing from a person referred to in subparagraph (

i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.

CIRCUMSTANCES [ 8 ] The accused was found guilty of various charges in connection with text and graphic files of child pornography, namely of having made, accessed, had in his possession such files between the twenty-second (22nd) of April ninety-seven (’97) and February third (3rd) two thousand and sixteen (2016), the day of his arrest. [ 9 ] Also, he was found guilty of having made an arrangement with a person to commit a sexual offence against a child under the age of sixteen (16) years. [ 10 ] The accused was found guilty after a trial.

The circumstances of these offences are reported and analyzed in the judgment dated March twenty-third (23rd), two thousand eighteen (2018), which must be taken to be a constituent part of this judgment. [ 11 ] After various very explicit online exchanges and one telephone conversation, the accused attended a meeting planned with an undercover officer, where he was arrested.

The purpose of the meeting was to become acquainted with the woman who was agreeing to offer up her daughter, who was eight (8) years old, so that the accused could live out his ultimate fantasy of having, sexual intercourse with a mother and her daughter. [ 12 ] The case law has recognized that the evidence presented at trial is an integral part of a forfeiture hearing. [ 13 ]

Section 164.2 of the Criminal Code , which was enacted in the wake of Bill C-15A, came into effect in two thousand and two (2002). Originally, this specific forfeiture regime applied to persons convicted of an offence contemplated in

section 163.1 of the Criminal Code (child pornography), and was subsequently amended to adjust to legislative amendments that created new offences in this area to add other offences, that is,

section 162.1 of the Criminal Code . (Publication of an intimate image without consent), 172.1 of the Criminal Code (Lurring a child) and 172.2 of the Criminal Code (Agreement by a means of communication). [ 14 ] These provisions were enacted with the clear intent to protect children against online sexual exploitation. [ 15 ] With the purpose of the regime governing the forfeiture of offence-related property in mind, should the forfeiture of the computer-related items at the accused’s home be confiscated as the Attorney General requests? [ 16 ] Is partial forfeiture, as the accused requests, an option that is provided for by the legislature in the context of a forfeiture under

section 164.2 of the Criminal Code ? [ 17 ] The forfeiture regime concerns only moveable property, and it is important to note that, unlike the general forfeiture regime set out in

section 490.1 of the Criminal Code ,

section 164.2 of the Criminal Code makes no reference to the proportionality test. In the view of the Prosecution, the Court should exercise its discretion and order the forfeiture of items 1 to 4. It claims that the Court does not have the jurisdiction to order partial confiscation as requested by the accused, that it is all or nothing. [ 18 ] Its arguments are based on a comparison among the different types of regimes available and the fact that some provisions specifically set out a proportionality test, unlike the specific regime in

section 164.2 of the Criminal Code . [ 19 ] The accused, for his part, is of the view that the Court has full discretion to allow a forfeiture or a delivery of the data on the seized items, after extracting what is illegal. In his opinion, this equation is very simple to perform, and he argues that several files with personal information relating to a record of earlier firing would be lost, including even business plans that he prepared and proposed as part of his release plan to assist in his rehabilitation.

APPLICATION TO THE PRESENT CASE [ 20 ] There is no doubt in light of the evidence that each of the items contemplated constitutes offence-related property within the meaning of

section 2 of the Criminal Code . [ 21 ] The admissions and the evidence accepted at trial reveal that each of the items was used during the commission of the offences. In particular, the record shows that child pornography was extracted from both of the hard drives contained in item 1. [ 22 ] The evidence establishes that item 1 was used to communicate with the undercover agent in connection with the offence in

section 172.2 of the Criminal Code . The undisputed evidence establishes that item 1 was used to produce, among other things, stories of child pornography. [1] [ 23 ] For item 4, the cellular telephone, the evidence indicates that the accused was the user. More specifically, it is the telephone that he used when he spoke to the undercover officer just before his arrest at the location of the meetings arranged between them beforehand.

In addition, the accused’s testimony leaves behind no ambiguity in this respect. [ 24 ] The offences of which the accused was convicted, set out in sections 164.1 and 172.2 of the Criminal Code , are punishable by sentences ranging from five (5) to fourteen (14) years, with certain minimum sentences. The legislator clearly demonstrated the seriousness of this type of offence by amending the relevant provisions more than once and by imposing minimum sentences of imprisonment in such cases.

The online sexual exploitation of children is a major scourge on society with significant social repercussions. [ 25 ] The Court agrees with the

interpretation the Crown puts forward and finds that the specific regime of forfeiture set out in 164.2 of the Code confers discretion on the judge to forfeit or not, unlike the general regime under 490 and the CDSA, which provides that the judge must forfeit if the conditions are met. The proportionality test set out in these two (2) other regimes, however, allows the judge to take into consideration certain criteria to render only a partial order if the circumstances so justify. This possibility is not present in the clear wording of

section 164.2 , and it is also not in keeping with the spirit of the statute. The Court need not interpret a clear provision. [ 26 ] For all of these reasons, the Court finds that the Prosecution has shown at least on a balance of probabilities that items 1 to 4 were used in the commission of offences and that they were the property of the accused. The Court finds that all of the conditions in

section 164.2 of the Criminal Code were met and therefore exercises the discretion that it is granted without hesitation. [ 27 ] The Court reiterates that the analysis of the specific regime of forfeiture in child pornography cases allows the Court to render or not to render an order of forfeiture, but it does not allow it to render a partial forfeiture order as the accused seeks. [ 28 ] The Court will push the analysis further. Even if the Court were in error with respect to the discretion that is recognized under

section 164.2 and it could therefore render a partial order, in the very specific circumstances of this case, especially considering the type of material seized and the fact that the material seized was found in several locations and even on several of the items, the Court would exercise its discretion to order the total forfeiture for the purposes of destruction.

ACCORDINGLY, AND FOR THESE REASONS, THE COURT [ 29 ] ORDERS the forfeiture of the seized material, items 1 to 4 as referred to in the application, so that it may be disposed of further to the instructions of the Attorney General, in accordance with the law. __________________________________ SOPHIE LAVERGNE, J.C.Q. Mtre Andréanne Marion/ Mtre Nathalie Legault Counsel for the prosecution The accused is self-represented Date of hearing: