Her Majesty the Queen - v. -, 2011 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 102 Date: June 24, 2011 Information: 24362724, 24379752 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - SS Appearing: Michael Morris For the Crown Wayne Rusnak, Q.C. For the Accused JUDGMENT P. KOSKIE , J [ 1 ] On or about May 8, 2010, near Melville, Saskatchewan, the Accused contacted an undercover officer who had a profile representing himself as a 14 year old girl on Net Log, which is a service similar to Facebook.

They engaged in a conversation over the Internet which lasted from 6:43 p.m. until 9:09 p.m. on the date in question. [ 2 ] In the course of the conversation the Accused forwarded pictures of a pornographic nature to the undercover officer and encouraged her, the supposed 14 year old girl, to masturbate while on the chat line with him. The nature of the conversation was very direct and exacting and left no room for misinterpretation as to the activity that this supposed 14 year old girl was engaged in while the

Accused was at the same time at least allegedly masturbating. [ 3 ] In the course of this discussion the Accused forwarded a series of four pictures identified as P-6(1-4) which shows a female masturbating; being penetrated; picture of a penis; and a picture of ejaculate on the woman's body. These pictures were of the body parts only, no faces were shown in any of these pictures. [ 4 ] This Internet chat was ultimately forwarded to the RCMP.

An investigation was instigated and a statement was obtained by the Accused concerning his actions with his stepdaughter due to the nature of the Internet chat. [ 5 ] In the voluntary statement of the Accused to the RCMP about his stepdaughter, the Accused indicated that he loved her both literally and figuratively. On a number of occasions he suggested he did not have a sexual relationship with his stepdaughter until she was almost 17 ½ going on 18 years old.

This relationship included taking a series of pictures of which P-6 represents four of the total of 10 pictures that were taken of the stepdaughter in a variety of sexual poses or acts. He deleted the pictures prior to his arrest. [ 6 ] The Accused when forwarding Exhibits P-6 to the undercover officer indicated they represented a 16 year old girl and that he had started to have sex with her at the age of 14.

He also disclosed it was his stepdaughter. [ 7 ] The stepdaughter testified indicating that a sexual relationship did occur with the Accused, her stepfather, but not until after she had reached the age of 18 years old. Further, that at the time the pictures were taken she was also over the age of 18. In addition, she testified that she had seduced him and had requested that the pictures be taken although she was unaware that they were forwarded to anyone until the trial of this matter.

The stepdaughter's testimony was such that she received a blanket on her 18th birthday that is visible in the pictures that were forwarded on May 8, 2010 and as a result of several personal incidents she is certain that any sexual activity that occurred was after she had reached her 18th birthday. [ 8 ] The Accused is charged with three criminal charges, the first a charge under

section 153 of the Criminal Code that being in a position of trust did for a sexual purpose touch and have sexual intercourse with his stepdaughter who is in a dependent relationship with him and under the age of 18 years. [ 9 ] The second charge was that on or about May 8, 2010, the Accused by means of a computer system did communicate with the person who he believed to be under the age of 16 years for the purpose of facilitating the commission of an offence under

section 152 of the Criminal Code contrary to

section 172.1 (

b) of the Criminal Code . [ 10 ] The third charge is that the Accused did distribute child pornography to wit: digital images of a person who is or who is depicted as being under the age of 18 years and engaged in explicit sexual activity, contrary to

section 163.1(3) of the Criminal Code . [ 11 ] The main issue with respect to the first charge is the actual date of intercourse or sexual touching that occurred between the stepdaughter and the Accused and whether that occurred after she was 18 years of age. [ 12 ] The Crown relies on the statement of the Accused who indicates on several occasions when talking with the police that he did not have sex with his stepdaughter until she was 17 and a half, almost 18 year old, in what was argued a mistaken belief that the age of consent was 16 years of age as opposed to 18 years of age.

Further, in the course of the Internet chat with the undercover officer the Accused suggests that he commenced having sex with his stepdaughter at the age of 14 as opposed to 18 years old. [ 13 ] This evidence is contrasted with the sworn testimony of the stepdaughter who's now 20 years old who indicated that the first sexual relationship occurred when she was 18 years old but she remembered it by virtue of activities going on in the community at the time namely a trade show and that she had initiated the sexual contact and the picture taking session.

Further, that in the pictures a black and gold blanket is plainly visible which she received on her 18th birthday from her parents thereby conclusively showing that in the

pictures she was 18 years old at the time. Upon cross-examination the stepdaughter did not vary from her story and based upon hertestimony I find I have a reasonable doubt on the charge under

section 153 of the Criminal Code and accordingly find the Accused notguilty of the same. [14] The third issue is whether or not the Accused distributed child pornography that is digital images of a person who is depictedas being under the age of 18 years and engaged in explicit sexual activity. The pictures in and of themselves provide no depiction thatwould suggest whether this individual in the pictures is under the age of 18 years or under the age of 30 years.

In making this finding Ifind nothing in the picture in and of itself that would indicate a depiction of a person under the age of 18 years. [15] I did spend a great deal of time reviewing case law concerning whether or not the chat with the undercover officer by theAccused indicating the pictures were of his stepdaughter at the age of 16 would allow for a conviction under this section. [16]

Section 163.1(1) of the Criminal Code defines child pornography, in part, as: (

a) a photographic... or other visual representation... (

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 inexplicit sexual activity, or ... [17] In R. v. Nedelec, 2001 BCSC 1334 , [2001] B.C.J. No. 2243 (B.C. S.C.), at paragraph 32: 32 In R. v. Sharpe, 2001 SCC 2 , [2001] 1 S.C.R. 45, the Supreme Court of Canada held that the definition of "childpornography" in s. 163.1(1) must be interpreted in accordance with the purpose of the legislation which is "to protect children fromexploitation and abuse by prohibiting possession of material that presents a reasoned risk of harm to children" (at para. 122).

Section 163.1(1)(a)(i) 33 The definition of "child pornography" includes the visual representation of a person "who is or is depicted as being under the age ofeighteen years and is engaged in or is depicted as engaged in explicit sexual activity". In Sharpe, supra, the court held that "depicted",bearing in mind the purpose of the section, must be interpreted in the objective sense. At para. 43, the court stated: The only workable approach is to read "depicted" in the sense of what would be conveyed to a reasonable observer.

The test must beobjective, based on the depiction rather than what was in the mind of the author or possessor. The question is this: would a reasonableobserver perceive the person in the representation as being under 18 and engaged in explicit sexual activity? 34 The court held that the goal of preventing harm to children supports a narrow

interpretation of "explicit sexual activity" andconcluded at para. 49 that the phrase means: ... acts which viewed objectively fall at the extreme end of the spectrum of sexual activity - acts involving nudity or intimate sexualactivity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. [18] In R. v. Garbett, 2008 ONCJ 97, affirmed in 2010 ONSC 2762 dealing with

section 163.1(1)(a)(

i) of the Criminal Code atparagraph 69: Under ss. (a)(i), a representation of explicit sexual activity will constitute child pornography if the person shown "is" or "is depicted asbeing" under the age of eighteen years. Insofar as a picture of a pre-pubescent child is concerned, it will ordinarily not be difficult toconclude that the person "is" less than eighteen years of age. However, being satisfied beyond a reasonable doubt of that fact raisesobvious problems after the onset of puberty. A reasonable doubt with respect to whether the person is under eighteen will not end theanalysis.

The court must go further and consider whether the person is "depicted as being" under eighteen. The meaning of "depicted" inthis context was explained by Chief Justice McLachlin, speaking for the majority of the Supreme Court of Canada, in R. v. Sharpe, 2001SCC 2 , [2001] 1 S.C.R. 45, 150 C.C.C. (3d) 321 (S.C.C.): Does "depicted" mean: (

a) intended by the maker to depict; (

b) perceived by the possessor as depicting; or (

c) seen as being depicted by areasonable observer? ... [The] statute makes it an offence for anyone to possess such material, not just those who see it as depictingchildren. 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 areasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity? [emphasis added] 70 The questions that the trier of fact must ask, therefore, are whether the person in the representation "is" under the age of eighteenyears, and if not, whether a reasonable person looking at the representation would perceive the person as being under eighteen.

The latterquestion focuses squarely on how old a reasonable person would think that the person depicted actually is. Regardless of which questionis asked, the requirement of proof beyond a reasonable doubt applies. The difference lies in what the trier of fact must be satisfied ofbeyond a reasonable doubt. In relation to the first question, it is the actual age of the person in the representation. In relation to thesecond, it is whether a reasonable observer would perceive the actual age of the person as being under eighteen.

A reasonable doubt withrespect to the first question does not lead inexorably to a reasonable doubt with respect to the second. Further, with respect to the secondquestion, the trier of fact does not have to be satisfied that a reasonable observer would have no reasonable doubt about the age of theperson. 78 ….In R. v. Nedelec, 2001 BCSC 1334 , [2001] B.C.J. No. 2243 (B.C.

S.C.), in the context of subparagraph (a)(ii), JusticeWedge stated: Following the objective approach as directed by the court in Sharpe, supra, and bearing in mind the purpose of the legislature in enactings. 163.1, I conclude that the test is whether a reasonable viewer, looking at the depiction objectively and in context, would conclude thatthe person depicted is under 18 years of age.

If there is reasonable doubt as to the age of the person depicted, the accused must beacquitted. 84 The question that remains is whether the Crown has proved beyond a reasonable doubt that either of the persons in image #41 is orwould be perceived by a reasonable observer as being under the age of eighteen years. I have been left to make that determination on thebasis of my own experience and knowledge. That is a daunting task, and I am not the first judge to recognize the problems inherent in it.In R. v. Loring, [2001] B.C.J. No. 2895 (B.C.

S.C.), Justice Wilson observed: In the absence of any evidence of the ages of the other persons depicted in these video recordings, Mr. Lauder submits that it is open tome to make a finding of "apparent age" by looking at the video recording. I have no expertise in assessing the age of young persons. Ihave no confidence that I would be able to give a reliable opinion on "apparent age" or otherwise, which would permit a distinctionbetween one aged seventeen years and nine months, and one aged eighteen years one month.

My confidence is in no way enhanced if Iam asked to distinguish between an eighteen year old and a fifteen, sixteen or seventeen year old. These matters ought not to bedetermined on a guess. I decline Mr. Lauder's invitation to speculate on the apparent age of the unidentified persons depicted in the videorecording. [19] In the present case again the wording of the charge is depicting as opposed to description or describing and therefore thebenefit of the doubt must fall to the Accused on the basis of the pictures. The Crown did not ask for leave to amend the information toconform with the evidence.

I noted the specific wording of the charge and on the basis of the specific wording of the charge, applyingthe test in Sharpe, supra, I can make no determination from the pictures themselves whether the subject in the pictures is 16 years of ageor 30 years old and accordingly I find the accused not guilty of this charge. [20] On the outstanding second issue which is count two on information number 24362724, I find the Accused guilty. [21] The only information the Accused had was the undercover officer was a 14 year old girl when by means of a computer didcommence an Internet chat whereby he forwarded explicit images and counselled the officer whom he believed to be a 14 year old girl toengage in a mutual masturbation session with him.

This violates both

section 172.1(b), luring and

section 152, invitation to sexualtouching provisions of the Criminal Code. [22] The discussion on the Internet chat is clearly sexual in nature encouraging the believed to be 14 year old girl to masturbatealong with the Accused. It is commonly referred to as grooming behaviour and was encouraged both by pictures that were sent alongwith explicit instructions and positive reinforcement. The Accused took no steps to determine the age of the girl and certainly noreasonable ones.

The use of these pictures of the stepdaughter for illustrations and his disclosure of his sexual relationship with hisstepdaughter attempted to create a fake normalcy to this behaviour for a girl he thought to be 14 years of age with a man who is presently59 years old.

P. Koskie, J