R. v. Harrison, 2020 QCCQ 2170

Translated from the original French R. c. Gagnon 2020 QCCQ 2170 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC “Criminal and Penal Division” No.: 200-01-213124-179 DATE: June 9, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN ASSELIN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. ANTOINE GAGNON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I.

OVERVIEW [ 1 ] The Crown alleges that between March 1, 2017, and June 8, 2017, the accused imported child pornography and that on June 8, 2017, he was in possession of child pornography, thereby violating

section 163.1 of the Criminal Code ( Cr. C. ). [ 2 ] More specifically, on April 17, 2017, he purchased from a website a 100 cm sex doll from China that arrived via Mirabel airport. At the airport, a Canada Border Services Agency (CSBA) officer opened the package and alerted the Ville de Québec police department (SPVQ) of his discovery. [ 3 ] An SPVQ investigator went to the airport to pick up the box. Once he returned to Québec, he analyzed the contents of the package and concluded that the sex doll was child pornography. He decided to organize a controlled police operation to deliver the package.

On June 8, 2017, the package and its contents were delivered by an SPVQ police officer, dressed as a United Parcel Service (UPS) delivery person, to the accused’s home in Québec. The same day, police officers carried out a search of his home and recovered the delivered object and three computers. [ 4 ] With respect to the accused’s guilt, the Crown asserts that the physical characteristics of the sex doll seized from the residence resemble those of a child or a person under the age of 18 years.

It states that the object seized corresponds to the definition of child pornography within the meaning of s. 163.1(1)( a )(ii) Cr. C. [ 5 ] The Crown adds that the only logical conclusion, based on the evidence, is that the accused was aware of the nature and the characteristics of the item purchased. The accused located and chose the object on a website, knew that the item was illegal, and took possession of it at his home upon its delivery. [ 6 ] The accused, on the other hand, submits that the evidence as a whole supports an inference other than his guilt.

According to him, there is no evidence of knowledge of the nature and the characteristics of the object ordered.

He notes that the invoice – that of the exporter and that of the accused – the appearance of the box, its description, and all the requests for additional information obtained by the CSBA give no indication as to the illegal nature of the contents or of the knowledge the accused is alleged to have had of the characteristics of the package that was delivered. [ 7 ] In addition, he asks the Court to accept the fact that he had never opened the box before the search in support of the conclusion that there is no evidence of his knowledge of the nature and the specific characteristics of the seized sex doll.

Finally, he is of the view that even if his arguments are rejected on this aspect, the sex doll is not child pornography as defined in s. 163.1(1) Cr. C . [ 8 ] This case is unusual. There is a dearth of Canadian case law on the matter. Only one case was found: R. v.

Harrison [1] from Newfoundland [ 9 ] It is important to note that the Court’s role is not to judge the accused on the wisdom of his choices on a moral level, but rather to determine whether the Crown has proved the essential elements of the alleged offences beyond a reasonable doubt. [ 10 ] To that end, the principal issues that must be decided are as follows:

(1) Is the sex doll seized from the accused’s home child pornography as defined in s. 163.1(1) Cr. C .?

(2) If so, has the Crown proved beyond a reasonable doubt that the accused was aware of or was willfully blind as to the nature and the characteristics of the seized sex doll and its accessories? [ 11 ] Let us examine this more closely. II. BACKGROUND [ 12 ] The SPVQ officers received information from a CSBA officer at Mirabel airport that he had found a package from China containing a silicone doll that was the size of a young child, along with accessories, that was to be delivered to the accused by UPS.

According to the CSBA officer, the doll was an object corresponding to the definition of child pornography under the Cr. C . At the CSBA’s request, the accused provided all the documents asked for. [ 13 ] On May 23, 2017, Investigator Olivier Simard of the SPVQ, who specializes in the sexual exploitation of minors, went to Mirabel airport to take possession of the package. Once he was back in Québec, he asked for the assistance of Officer Manon Lévesque from the forensic identification department. He opened the box and analyzed its contents.

Inside, he found: • A naked doll made of soft rubber; the doll was in two pieces, i.e., the body and a bald head, and had a height of 100 cm when assembled; • A long-haired pink wig in a net that had labels with writing in an Asian language; • Pink lace stockings in a plastic wrapping; • White net G-string underwear in a plastic wrapping; • A mostly transparent bustier and skirt, which, when worn by the doll, go from the waist to above the knee; • A white foam mask with openings to protect the doll’s eyes, which have long eyelashes; • A white and pink attachment with an approximately 13 cm long wire and USB plug that can be used to warm up the doll’s sexual parts; • A plastic pump with a white attachment that retrieves bodily fluids from the doll’s orifices. [ 14 ] Constable Lévesque also noted that the waistband of the G-string underwear was 18 cm larger than the doll’s waist.

Similarly, she noted that the stockings were 20 cm longer than the doll’s legs. [ 15 ] In addition, officers Simard and Lévesque noted the sexual characteristics of the assembled doll. It had three orifices: a mouth, a vagina, and an anus, in which it was possible to insert objects or a male sexual organ.

The breasts were not very developed; there was no pubic hair, and the labia were small. [ 16 ] Convinced that it was a sex doll that resembled a child with three orifices – mouth, vagina, and anus – a police operation was organized to deliver the doll to the accused. [ 17 ] Investigator Christian Lachance of the SPVQ, disguised as a UPS delivery person, thus went to the accused’s home on June 7, 2017. He delivered a box containing the doll and its accessories to the accused. An hour after the delivery, a search of the accused’s apartment was carried out.

The principal objects seized were three computers belonging to the accused and used exclusively by him and the unopened box that had been delivered to him. [ 18 ] Using the Forensic Explorer and Internet Evidence Finder software, Investigator Claude Poulin of the SPVQ’s technological crimes unit analyzed the computers and performed a keyword search in the Internet browser files.

Because the accused is a lawyer, the syndic of the Barreau du Québec intervened and assisted Investigator Poulin during the search in establishing the keywords to prevent the police officers from accessing the accused’s confidential client files. [ 19 ] Only the Mac computer drew Investigator Poulin’s attention. He said that the two other computers had been reset the day before the search and that he did not find anything relevant to the investigation. [ 20 ] The Google browsing history file on the Mac laptop computer contained several terms used by the accused to perform his online searches.

Officer Poulin noted that in the Google searches, several web pages viewed by the accused focused on themes whose main characteristics represented sex dolls. For example, he found the following words: • 100 cm sex doll; • Catdoll sex doll; • Small tits sex doll; • Small breast sex doll; • Flat chest sex doll; • No chest sex doll; • 100 cm doll forum;

• Silicon sex doll; • Sex doll; • Teen sex doll. [ 21 ] In all of the searches, only seven results contained the words “teen sex doll”. [ 22 ] In the browsing history, he also found visits by the accused to UPS’s website to track the package. From his analysis, Investigator Poulin noted that the accused did not use the words “young”, “girl”, “girly”, “kid”, “baby”, “child”, “children”, or “youth” to perform his Internet searches. [ 23 ] From the data extracted from the Mac computer by Investigator Poulin, Sergeant-Detective Simard focused on the websites visited by the accused.

He explained that the accused’s Internet searches generated URL links, i.e., the names of the related websites, which contain words that could go beyond the terms used by the accused for his searches. [ 24 ] To facilitate his work, he created an Excel file and transferred the data to it.

From his analysis, Investigator Olivier Simard noted that the accused accessed 3,768 websites between February 10, 2017, and May 9, 2017. [ 25 ] Concerning the search term “teen”, Investigator Simard stated that his understanding of the word “teen” in [ translation ] “pornography language” is that it does not refer to an adolescent, but rather to a person between the age of 18 and 21 years.

He added that on adult pornography websites, the meaning of the word “teen” is not in and of itself illegal. [ 26 ] With respect to the sites that refer to sex dolls, Investigator Simard’s observations can be summarized as follows: • The accused visited 110 websites before April 17, 2017, the day he purchased the doll; • Between April 17, 2017, and May 9, 2017, the accused visited 121 websites with pages selling sex dolls resembling adolescents, that is, 3.2% of the websites visited; • He made 18 visits to websites featuring dolls resembling children, i.e., 0.5% of the websites visited; • Between April 17, 2017, and April 22, 2017, he made 4 website visits to the same video discussing an increase in online sales of child sex dolls, i.e., 0.1% of the websites visited; • Between April 18, 2017, and May 7, 2017, he made 16 visits to websites with videos from pornographic websites showing sexual relations with miniature sex dolls and websites selling miniature sex dolls, i.e., 0.4% of the websites visited.

Of these websites, 12 featured sexual relations with miniature sex dolls and 4sold miniature sex dolls; • Between March 7, 2017, and April 21, 2017, he made 15 visits to websites publishing photos of scantily clad children and young adolescents, i.e., 0.4% of the websites visited.

Of these 15 visits, 6 led to discussion forums or blogs promoting scantily clad children and young adolescents; • Between April 17, 2017, and May 9, 2017, he made 222 visits to websites with URL links or titles containing the word “young”, i.e., 5.9% of the websites visited; • Between April 17, 2017, and May 7, 2017, he made 26 visits to websites with URL links and titles related to the keyword “teen”, i.e., 0.7% of the websites visited; • On March 23, 2017, at 2:31 a.m., he performed 1 search for and made 1 visit to a website leading to a Canadian Press

article dated March 21, 2017, titled: “ Child sex doll trial in Newfoundland raises issue of what constitutes child pornography” . A search in the Google search engine on the same subject was also performed on May 5, 2017, at 2:52 a.m. [ 27 ] Finally, it should be noted that the analysis of the computers seized on June 8, 2017, did not identify the website visited by the accused on April 17, 2017, to purchase the sex doll seized at his home.

All that was found was an invoice for the purchase and the visit to the UPS website where the tracking number associated with the sex doll package was used on April 22 and 25, 2017. III. ANALYSIS [ 28 ] At trial, the accused chose to exercise his right to silence. As such, the analysis will deal with the all the Crown’s evidence that was accepted by the Court. [ 29 ] Before addressing the main issues raised in this trial, it is important to recall certain legal principles that must guide the Court. [ 30 ] The presumption of innocence is the key constitutional principle that must guide all criminal trials.

The Crown thus has the burden of establishing the accused’s guilt beyond a reasonable doubt. [ 31 ] On the basis of that principle, the Supreme Court teaches us that t he paramount question in criminal cases is whether the evidence as a whole raises a reasonable doubt as to the accused’s guilt. [2]

[ 32 ] It also asserts that a reasonable doubt is not an imaginary or frivolous doubt. It cannot be based on sympathy or prejudice. It must be based on reason and common sense. It must be logically connected to the evidence or the absence of evidence. [3] [ 33 ] To prove that the offence of possession of child pornography set out in s. 163.1(4) Cr. C . was committed, the Crown must establish the following elements: 1. The nature and the characteristics of the material constitute child pornography; 2. The accused was in possession of the material; and 3.

The accused was aware of or was willfully blind as to the material’s nature and its characteristics of child pornography. [4] [ 34 ] To answer the questions raised by the issue of this trial, it is essential to examine each of these elements in the context before us. [ 35 ] However, because the issue of possession is not in dispute between the parties, the Court does not intend to address it directly in the judgment.

Possession will be discussed indirectly from the perspective of knowledge and willful blindness. [ 36 ] For the purpose of the analysis, it should be noted that the accused admits to having imported a sex doll from China that was delivered to his home on June 8, 2017. That admission exempts the Crown from having to prove one of the essential elements of the charge of importing child pornography alleged against the accused under s. 163.1(3) Cr. C ., that is, the importing itself. A.

DOES THE SEX DOLL CONSTITUTE CHILD PORNOGRAPHY? [ 37 ] It should be noted at the outset that the case law on the possession of child pornography consists of a multitude of decisions examining the pornographic nature of material such as photographs, videos, and writing. Parliament initially focussed on these more obvious forms of pornography when enacting the provisions criminalizing child pornography. [ 38 ] With the exception of Harrison , [5] a judgment that is essentially laconic on this issue, no decision specifically addresses a sex doll like the one seized on June 8, 2017, from the accused’s home.

Let us consider whether it may be characterized as child pornography as defined in s. 163.1 Cr. C. [ 39 ] The relevant statutory provision setting out the definition of child pornography states the following: 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; [Emphasis added.] [ 40 ] In this case, the Crown essentially bases its theory on s. 163.1(1)( a )(ii) Cr. C. [ 41 ] The leading case on the issue is the Supreme Court’s judgment in R. v.

Sharpe , [6] which sheds important light on Parliament’s intention when it enacted this provision and on the scope of the definition of child pornography. The Court stated: Parliament’s main purpose in passing the child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a message to Canadians “that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners”: House of Commons Debates , 3rd Sess., 34th Parl., vol. XVI, June 3, 1993, at p. 20328.

However, Parliament did not cast its net over all material that might conceivably pose any risk to children or produce any negative attitudinal changes. Mindful of the importance of freedom of expression in our society and the dangers of vague, overbroad legislation in the criminal sphere, Parliament set its targets principally on clear forms of “child pornography”: depictions of explicit sex with children, depictions of sexual organs and anal areas of children and material advocating sexual crimes with children.

Through qualifications and defences Parliament indicated that it did not seek to catch all material that might harm children, but only material that poses a reasoned risk of harm to children and, even then, only where the countervailing right of free expression or the public good does not outweigh that risk of harm. [7] [Emphasis added.] [ 42 ] Thus, the provisions governing child pornography seek to strike an appropriate balance between two fundamental values of Canadian society : protecting children against sexual exploitation on the one hand, while taking into account the importance of freedom of expression on the other.

[ 43 ] Concerning the scope of the definition of child pornography, Serge Champoux, J.C.Q. summarized the intention of Parliament well. He stated: [ translation ] [20] The harm that this provision and the others concerning child pornography are intended to combat is well known.

These provisions are measures designed to eradicate all sexual activity between adults and children, to prevent the sexualization of children, and to avoid them becoming sexual partners because, generally speaking, society considers it immoral and truly criminal to direct sexual desires or fantasies towards children. [21] Any material that seeks to promote, encourage, permit, or be useful to achieving such ends is deemed criminal.

If an image or video presents naked children as its dominant characteristic for the purpose of causing sexual excitement or of seeking such sensations for certain persons, then the material constitutes child pornography. [8] [ 44 ] To add to the remarks of Champoux, J.C.Q., the Court finds that the promotion and purchase of sex dolls resembling a person under the age of 18 years contributes to the sexual exploitation and objectification of children and adolescents.

They reinforce relationships of power, inequality, and violence in their regard, projecting an unhealthy image and making them vulnerable. [ 45 ] In this case, the Crown contends that the sex doll ordered by the accused falls within the definition set out under s. 163.1(1)( a ) (ii) Cr. C. , i.e., a representation “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 Court agrees for the reasons that follow. [ 46 ] In LSJPA — 1811 , [9] the Court of Appeal interpreted the terms “the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ … of a person under the age of eighteen years” used by Parliament in s. 163.1(1)( a )(ii) Cr. C . It stated: [ translation] [9] A modern

interpretation of a statutory provision requires that the words of a statute be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the statute and the intention of Parliament. [10] The statutory provision in question here was enacted in 1993 and is the result of reports of parliamentary committees .

Among them, the 1984 report of the Badgley Committee, whose contribution was particularly significant, reveals the following: … it is only through “base and coldly premediated exploitation of a young person’s sexual vulnerability” that child pornography can be made. To the extent that there is any production in Canada, it should be severely dealt with. The Report accordingly recommends the creation of a new criminal offence – using, inciting, coercing or agreeing to use a person under 18 to participate in the production of a “visual representation” of “any explicit sexual conduct”.

This latter phrase is defined to include vaginal, oral or anal intercourse, bestiality, masturbation, sado-masochistic behaviour and “lewd” touching or “lewd” exhibition of breasts or genitals. [11] The text of

section 163.1 also reflects an undertaking taken by Canada in ratifying the Convention on the Rights of the Child , which provides the following in

Article 34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: … (

c) The exploitative use of children in pornographic performances and materials. [12] It is clear that the concepts included in s. 163.1(1)( a )(ii) Cr. C . must be assessed in this context and in accordance with the objective of protecting children. … [14] Paragraphs 50 to 53 of that judgment set out the importance of giving the term “sexual organ” a restrained

interpretation and analyzing the expressions “dominant characteristic” and “sexual purpose” with a view to determining whether a reasonable person would consider that the dominant characteristic of the image is the depiction of the child’s sexual organ for a sexual purpose in the sense of being reasonably perceived as intended to cause sexual stimulation … . [10] [ 47 ] To determine whether the doll can be characterized as child pornography, it is appropriate to refer to the legislative definition and ask the following question: Is the sex doll an other visual representation, the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a person under the age of 18 years? [ 48 ] This question involves five concepts that merit particular attention and require an in-depth analysis.

These concepts are as follows: 1. An other visual representation; 2. The dominant characteristic; 3. The depiction of a sexual organ; 4. For a sexual purpose; 5. Of a person under the age of 18 years.

1 . An other visual representation [ 49 ] According to the Supreme Court in Sharpe , [11] it appears that a doll can be considered an “other visual representation”:

Section 163.1(1) defines child pornography in terms of two categories: (1) visual representations (s. 163.1(1) ( a )); and (2) written and visual advocacy and counselling material (s. 163.1(1) ( b )). Visual representations include “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means”.

This is broad enough to include drawings, paintings, prints, computer graphics, and sculpture: in short, any non-textual representation that can be perceived visually . [12] [Emphasis added.] [ 50 ] The Dictionnaire de droit québécois et canadien provides the following definition of the French term “ représentation ”: Fait de présenter la réalité par différents moyens, … [13] [ translation ] The presentation of reality by various means … [ 51 ] From these teachings, it can be understood that an object that can be perceived visually and that presents reality, such as a doll, qualifies. [ 52 ] On this issue, in R. c.

Renaud , [14] Marc David, J. of the Superior Court considered whether a child sex doll may be considered child pornography as defined by the Criminal Code under the concept of “other visual representation”. [ 53 ] For a better understanding of David, J.’s legal reasoning, a brief

summary of the facts is warranted. In that case, an investigator sought judicial authorization for the issuance of a search warrant covering a child sex doll. The justice of the peace refused to issue the warrant because, in his view, the object covered by the warrant was not an image, written material, a video, or an audio recording within the meaning of the definition of “child pornography” in

section 163.1 Cr. C . [ 54 ] Armed with additional documents, the investigator again went before a justice of the peace to obtain judicial authorization to search for the sex doll. The application was again dismissed.

In response, the Director of Criminal and Penal Prosecutions (DCPP) went before the Superior Court seeking a ruling against the decisions of the respondent justices of the peace and the issuance of a search warrant and an arrest warrant. [ 55 ] Citing the Supreme Court’s judgment in Sharpe , David, J. found that the expression [ translation ] “representation” covers not only images and videos, but also objects: [ translation ] In light of Sharpe , the Court is of the opinion that Compagnone, J. erred in law when she decided that [ translation ] “the object covered by the search warrant was not an image, written material, a video or an audio recording within the meaning of the definition of ‘child pornography ’. ” Merely reading s. 163.1(1) Cr.

C. could lead to this

interpretation. Sharpe, however , specified the definition of “visual representation”, which clearly includes objects, not just images. By committing this error of law, the justice therefore failed to consider whether this object could constitute child pornography. This error of law therefore prevented her from exercising her jurisdiction.

Had she done so, presumably she would have found that the object sought, namely the child sex doll observed by Canadian customs officers, constitutes child pornography. [15] [Emphasis added.] [ 56 ] That judgment thus established that the term “other visual representation” includes objects such as a sex doll. 2 .

The dominant characteristic [ 57 ] In regard to the concept of dominant characteristic, the Supreme Court summarized the applicable test in Sharpe : 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. [16] [ 58 ] Applying this test, a judgment of the Ontario Superior Court of Justice set out several factors to consider in determining the dominant characteristic in cases of photos and videos, the most common forms of child pornography: In determining whether the dominant characteristic is the depiction of the genital or anal area, I considered the following three factors: i. first, the number of images of the genitals and or anal region;

ii. second, the characteristics of the images. This includes: a. the clarity of the image; b. the proximity of the genital area or anal region to the camera; c. the duration of the depiction of the genital and anal region; d. the camera angle; e. whether the camera zooms in on the genital or anal region; f. whether the focus on the genital area or anal region seems to be a deliberate intention to emphasize the genitals or anal region; and g. whether there are captions or other methods used to highlight the genital and anal regions. iii. third, the context in which the images are taken. This includes:

a) the significance of the images to the film as a whole including the plot, visual representations or music;

b) the apparent purpose of the depiction of the genitals and /or anal region; and

c) if they are part of a larger collection, the context of the collection as a whole. The determination of whether the dominant characteristic is the depiction of the genital or anal area is based on the image not on what was in the mind of the person in possession or the maker of the image. ( R. v. Sharpe (supra) and R. v.

Chaisson at p. 31 (unreported) MacDougall J. (S.C.J.)). [17] [ 59 ] Despite the usefulness of the factors set out in regard to images and video, there is no example illustrating what constitutes the dominant characteristic of an object such as a sex doll. [ 60 ] The Larousse dictionary provides the following definition of the French word “ caractéristique ”: Ce qui constitue le caractère distinctif, le trait dominant de quelque chose, de quelqu'un, ce qui caractérise quelqu'un, quelque chose. [18] [ translation ] That which constitutes the distinctive nature, the dominant feature of something or someone, that which characterizes someone or something. [ 61 ] In Houle , [19] Pierre Simard, J. stated the following on this issue: [ translation ] 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. [Emphasis added.] [ 62 ] The Court subscribes to this approach and must determine whether the sex doll emphasizes the sexual organs or anal region. [ 63 ] As suggested by Richard Côté, J.C.Q., the analysis of the dominant characteristic must be carried out on the basis of the content of the representation while taking its context into account. [20] This leads us to consider the characteristics of the object itself as well as its context.

In other words, what is the distinguishing feature of the doll, and what characterizes it? [ 64 ] In this case, the doll represents a female person. It has three orifices, i.e., a mouth, a vagina, and an anus, in which it is possible to insert an object or a male sex organ.

With respect to the context surrounding the object, the addition of accessories – in this case underwear, a pump to retrieve bodily fluids, and a rod that can be heated to replicate the warmth of a human body – emphasizes the sexual organs and anal region of the doll. [ 65 ] Although the accused admits the “sexual purpose” aspect of the doll, the fact remains that the Crown must prove beyond a reasonable doubt that the “dominant characteristic” of the doll is the depiction, for a sexual purpose, of a sexual organ or the anal region. [ 66 ] In this regard, R. v.

Ramlogan [21] illustrates the importance of establishing the dominant characteristic of the material in question. The central issue to be decided by the judge was whether the movies in the accused’s possession constituted child pornography within the meaning of s. 163.1(1)( a )(ii) Cr. C . The movies in question were mostly of children wearing swimsuits; no sexual acts or explicit images of sexual organs were depicted. The judge stated the following: The same general theme is present in the three movies.

Each movie contains several different clips of a young Asian girl in different outfits and, in most cases, eventually a clip of the child wearing a swimsuit. The girls appear to be between the ages of 6 to 8. The swimsuit the girls are wearing appear to be women sized suits, with larger tops. Only soft instrumental music can be heard, there is no speaking, only one girl is in each movie or clip. No one else is in the movie although on one occasion a man can be seen at the side taking a picture of the girl.

Various backgrounds are depicted in the movie: including a swimming pool, a classroom setting, and a bedroom. On occasion the child is posing provocatively in ways that are not age appropriate. The poses are more akin to a swimsuit model but these are infrequent. Mostly the children appear to do what they feel like. The girl in some clips, plays with a ball, pillow. One

very odd clip however, depicted a girl in a bikini wearing shoes with a heel, attempting to sit on a bicycle. In another clip a girl is wearing a large pair of underwear that say “kiss me”. In one scene a girl does the splits with her leg on a fence. Very often, the videographer pans the entire body of the girls up and down, sometimes stopping at the lower region.

However, in none of the pictures can you make out the sexual organs as occurred in other cases, where the bathing suit was wet or see through. [22] [ 67 ] That judgment is an example of a case in which the dominant characteristic of the movies in question was determinative with respect to the verdict.

Although the judge found that the movies served the sole purpose of normalizing the objectification of children as sexual objects and that they could be perceived as being intended to cause sexual stimulation to the viewers, he emphasized that this was insufficient to meet the definition of child pornography under the Cr. C. [ 68 ] He noted that the Crown was required to prove beyond a reasonable doubt that the dominant characteristic of the image was the depiction of sexual organs.

Because he was not satisfied beyond a reasonable doubt that a reasonable viewer looking at the movies objectively and in context would see their dominant characteristic as the depiction of a child’s sexual organ or anal region, the judge acquitted the accused. [23] [ 69 ] This judgment also illustrates the importance for the Crown to prove the dominant characteristic of the object beyond a reasonable doubt before it can be characterized as child pornography, even though the doll is clearly intended to stimulate certain people sexually.

The fact remains that, for the object to constitute child pornography, its dominant characteristic must be the depiction of sexual organs. The dominant characteristic of the object and the purpose of the object are two separate elements, the proof of which lies on the Crown. [ 70 ] Although the parties did not really address the issue of the dominant characteristic of the object in their submissions, the Court is of the view that the Crown has proved beyond a reasonable doubt that the dominant characteristic of the doll is the depiction of a sexual organ or the anal region.

The sex doll seized at the accused’s home must be assessed in its overall context and in accordance with the objective of protecting children. [ 71 ] It is important to distinguish Ramlogan from the case at bar.

Although involving children, three of the movies seized in that case were of clothed children who did not engage in any sexual acts, and the videos showed no explicit images of the sexual organs or the anal region. [ 72 ] The sex doll seized during the search on June 8, 2017, is a 100 cm object whose dominant characteristic includes three orifices – a mouth, a vagina, and an anus – which are functional and able to receive an object or a body part, such as a penis. The doll’s only purpose is the sexual stimulation of a person.

It is clear that a visual inspection of the doll, combined with the presence of particular accessories would lead a reasonable person to consider the doll’s dominant characteristic to be the depiction, for a sexual purpose, of a sexual organ or the anal region. 3 . The depiction of a sexual organ [ 73 ] Most child pornography cases reported in the case law concern photo and video materials. The concept of “depiction of a sexual organ” is necessarily assessed in accordance with what is visually perceived from the visual medium.

Because this case features a doll, not a photograph or a video, the Court is of the view that, for such an object, the depiction must have both a visual connotation and a functional one. [ 74 ] Generally speaking, a doll is a visual representation of a person. In the same way that a photo can present a person with diverse characteristics, a doll can also represent a person with diverse characteristics.

For example, some dolls represent children, while others may present the appearance of adult persons or even animals. [ 75 ] In this case, it is clear that the doll is a visual representation of a small-sized, female human person with genital organs consisting of orifices and that it is accompanied by various accessories such as underwear. [ 76 ] A doll may also have a functional aspect. Various types of dolls exist on the market, and some have an educational function, such as those used to teach cardiopulmonary resuscitation and those used in biology or medicine courses .

Some are recreational and are intended to amuse children, while others are artistic and constitute collector’s items. [ 77 ] In this case, the doll’s sexual organs are not visually prominent.

Rather, they are small orifices and do not represent a large proportion of the doll in relation to rest of the body. [ 78 ] Because the Court considers that the dominant characteristic must include the depiction, in a functional sense, of a sexual organ or the anal region, the doll in question essentially constitutes an object allowing the sensation of the female sexual organ or the anal region during sexual relations to be recreated.

That is the principal purpose of the object, if not its sole purpose. [ 79 ] Accordingly, its dominant characteristic is the depiction of a sexual organ or the anal region from a sensorial perspective. That is what differentiates it from other types of dolls. The fact that the doll is equipped with a heating wand that can be inserted into its orifices to recreate the warmth of the human body when a part of a person’s body

part is inserted into it is rather evocative. 4 . For a sexual purpose

[ 80 ] Because the accused does not challenge this aspect, it is not necessary to consider the issue. 5 . A person under the age of 18 years [ 81 ] The parties disagree on the age that should be attributed to the doll. The Supreme Court notes that the statutory provisions concerning child pornography apply to both real and fictional persons. In fact, Sharpe [24] established that the word “person” used in s. 163.1(1)(

a) Cr. C. concerns both actual and fictional persons: [38] The first issue is important because it governs whether the prohibition on possession is confined to representations of actual persons, or whether it extends to drawings from the imagination, cartoons, or computer generated composites. The available evidence suggests that explicit sexual materials can be harmful whether or not they depict actual children . Moreover, with the quality of contemporary technology, it can be very difficult to distinguish a “real” person from a computer creation or composite.

Interpreting “person” in accordance with Parliament’s purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that “person” in the charging

section and in s. 163.1(1)(

b) refers to a flesh-and-blood person, I conclude that “person” in s. 163.1(1)(

a) includes both actual and imaginary human beings. [39] This definition of child pornography catches depictions of imaginary human beings privately created and kept by the creator. Thus, the prohibition extends to visual expressions of thought and imagination, even in the exceedingly private realm of solitary creation and enjoyment. [Emphasis added.] [ 82 ] That being said, this case raises the difficult issue of attributing a human age to an object.

In this regard, authors Manning and Sankoff indicate that the test is an objective one: First, while the definition refers to a “person”, it does not require proof that the person is real. In Sharpe, McLachlin C.J.C. accepted that “explicit sexual materials can be harmful whether or not they depict actual children”. … Second, the provision captures those “depicted” as being under the age of 18, as well as those who are actually under that age.

This term requires an objective assessment of the depiction, effectively: would a reasonable observer perceive the person in the representation as being under 18 ? [25] [Emphasis added.] [ 83 ] The Court adopts this position and does not share that of the accused, according to which expert evidence is necessary to determine the age. Consequently, the only question that the trier of fact must answer is: Would a reasonable person perceive the doll to be a depiction of a person under the age of 18 years? [ 84 ] R. v. Harrison [26] is not particularly enlightening on this issue.

The judge’s reasons essentially come down to accepting the testimony of an expert. The expert’s opinion, however, was based on the content of the websites visited by the accused to order the doll and the way it was advertised: I accept the expert testimony of Dr. Peter Collins that the doll delivered to the accused meets the definition of child pornography in the Criminal Code … . An important basis for Dr. Collins’ conclusion about doll as being child pornography is the manner in which the doll was advertised and presented on the website. Dr.

Collins viewed the screenshots taken from the site by police some one month after the doll was ordered by Harrison. Not all dolls depicted on the site were advertised as children or under the age of 18 years, some were clearly adult dolls. [27] [ 85 ] In this case, the Court has no evidence informing it of how the doll was ordered, presented, or advertised when the accused purchased it on April 17, 2017. [ 86 ] That being said, another aspect of the determination of the doll’s age raises a difficulty in regard to the difference in drafting between sub-paragraphs (

i) and (ii) of the definition of child pornography. Sub-paragraph (

i) concerns the depiction of “a person who is or is depicted as being under the age of eighteen years” while sub-paragraph (ii) uses only the expression “a person under the age of eighteen years”: 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 ; [Emphasis added.] [ 87 ] Is the fact that the expression “or is depicted as being” is not reproduced in sub-paragraph (ii) significant? It may lead some to think that the test for assessing age is different depending on whether it is child pornography depicting a person engaged in explicit sexual activity or depicting a sexual organ or the anal region. [ 88 ] In Prosecuting and Defending Offences Against Children , the authors address the issue as follows: Difference in wording respecting age Between Sections 163.1(1)(a)(

i) and (ii)

Section 163.1(1)(a)(ii) refers to “a person under the age of eighteen years,” whereas

section 163.1(1)(a)(

i) refers to “a person who is or is depicted as being under the age of eighteen years.” The difference in wording would lead one to think there is a difference in the approach to age between the sections, and at least one case states there is. However, the majority of cases find the approach to age is the same under both sections, holding that it is “difficult to understand” why the question of age should be approached differently depending on whether the material shows explicit sexual activity or the sexual organs/anal region. This latter position finds additional support in the objective approach mandated by Sharpe. There is nothing grammatically unsound in reading “depiction” in

section 163(a)(ii) as referring both to the phrase “of a sexual organ or anal region” and to the phrase “of a person under eighteen”. [28] [Footnote omitted.] [ 89 ] The Court prefers the approach according to which sub-paragraphs 163.1(1)( a )(

i) and (ii) Cr. C. command the same

interpretation notwithstanding the differences in their drafting.

An Ontario judgment also adopts this position. [29] [ 90 ] In any event, having had the benefit at trial of seeing the sex doll with its facial features surrounded by the pink wig, the shape of the body, and the vagina with small labia and no pubic hair, the Court is left with no reasonable doubt that its appearance depicts that of a child or a young adolescent under the age of 18 years. [ 91 ] For these reasons, the Court finds beyond a reasonable doubt that the sex doll seized from the accused’s home on June 8, 2017, corresponds to the definition of child pornography in s. 163.1(1)( a )(ii) Cr. C. B.

The accused was aware OF or was willfully blind as to the pornograp HIC NATURE OF THE material [ 92 ] Because the evidence is mainly circumstantial, the Court must be convinced beyond a reasonable doubt that the only rational conclusion cannot support any inference other than guilt. If there is any other reasonable conclusion, viewed logically and in light of human experience and common sense, the prosecution has not met its burden. [30] [ 93 ] In R. v.

Villaroman , [31] the Supreme Court stated that the accused is not required to prove facts to support this inference: [35] … In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts : R. v. Khela , 2009 SCC 4 , [2009] 1 S.C.R. 104 , at para. 58 ; see also R. v. Defaveri , 2014 BCCA 370 , 361 B.C.A.C. 301 , at para. 10 ; R. v. Bui , 2014 ONCA 614 , 14 C.R. (7th) 149 , at para. 28 .

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 [underlining omitted]. A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. … [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty . [32] [Emphasis added.] [ 94 ] Moreover, the case law establishes that possession requires knowledge of the criminal nature of the thing in question. [33] In Morelli , [34] the Supreme Court stated that the criterion of knowledge consists of two elements. First, the accused must be aware that he or she has physical custody of the thing in question, and second, he or she must be aware of its nature.

[ 95 ] On the basis of these principles, the Court must now determine whether the accused was aware of or was willfully blind as to the criminal nature of the sex doll he purchased on April 17, 2017. In other words, was he aware of or was he wilfully blind as to the fact that the sex doll was an unlawful object. Let us now consider the state of the law on the issue and its application to this case. [ 96 ] In Prosecuting and Defending Offences Against Children , the authors state that the accused must be aware of the general qualities of the object in question that might make it child pornography.

In their treatise, they state: The requirement of knowledge encompasses two elements: the accused must be aware that they had physical custody of the thing in question and must be aware of what the thing is. This does not require the Crown to prove that the accused knew that the files met the legal definition of child pornography.

Rather, the accused must be aware of the general qualities of the files that might make them child pornography (or be reckless or wilfully blind to these qualities). [35] [ 97 ] Normand Bonin, J.C.Q. presents an interesting portrait of the elements to look for to determine whether or not there was knowledge: [ translation ] [15] The subjective intent to possess prohibited material entails that the accused was aware of the content of the material in his or her possession, that the accused had some control over it, and that he or she possessed it with consent.

The intent to possess may be inferred from several elements.

From the Court’s perspective, such intent may be inferred differently depending on the particular context. [16] In the context of the use of a computer, intent may be inferred from control, intent to control, or consent in regard to such control by the accused of the computer, software, burners, digitizers, online groups, emails, electronic bulletin boards, and the other components and networks used, by which the accused came to be in possession of the prohibited material. [17] Control itself may be inferred from several circumstances, including viewing the material, downloading (or importing), and uploading (or exporting) files, transferring files from one computer medium to another, and other ways of handling the material.

However, it would certainly be an error to conclude at the outset that there was intent to possess based on the mere existence of one of these circumstances. Rather, all the circumstances must be taken into consideration. [18] The Court is of the view that caution is necessary in cases of possession of prohibited elements on a computer. There are in fact several mechanisms by which an individual can receive spam email messages or unwanted files by file transfer protocols.

The handling of files and a gradation in the frequency and complexity of file handling may create an a priori factual presumption that the accused wanted to keep the files. This factual presumption is of course rebuttable. Thus, the mere fact of opening a file obtained by email or from a computer medium and then deleting it does not constitute an element of possession. Similarly, the handling of a group of files to free up space on a computer medium does not necessarily constitute possession.

In all cases, it is necessary to simultaneously assess the accused’s knowledge of the material that was handled. [36] [ 98 ] Because the commission of the offence often involves the use of a computer, the case law fuels our reflection in this case and provides examples of specific applications in child pornography cases and the difficulties raised.

For the purpose of analysis, it is worth drawing a parallel with the use of a computer. [ 99 ] The commentary provides a list of factors that support the conclusion that the accused had knowledge in cases involving computer files: The following examples of circumstantial evidence have been successful in proving knowledge of contents: - file names; - search terms; - organization; - perseverance in seeking material; - habit; - hiding files or deletion of files pending arrival of police; and - knowledge of location versus no knowledge of awareness of location. [37] [ 100 ] Regarding the fact that the accused had not opened the box when he was arrested and had not been able to see its contents, an excerpt from Tremblay [38] appears particularly relevant.

Bonin, J.C.Q. stated: [ translation ] [19] It is therefore necessary to consider all the circumstances to conclude that there was intent to possess. It is possible for an individual to have had knowledge of possession of unlawful material without having seen it. The Court respectfully submits that the principle that can be inferred from R . v. Weir is the necessary evidence of knowledge of the nature of the material. Seeing it, however, is not required to establish possession. For example, it is possible for an individual to knowingly purchase a diskette of child pornography.

In the Court’s view, possession would be complete as of the time of purchasing the diskette, without it being viewed. Each case turns on its own facts. [39] [ 101 ] On the basis of this excerpt, the Court finds that in this case, the fact that the accused did not open the box is not determinative of his knowledge of its contents. What matters is evidence of knowledge of the nature of the material he ordered. Yet there is no direct or

indirect evidence of what the accused saw at the time he purchased the sex doll on April 17, 2017. [102] In R. v. Manna,[40] the judge stated that the absence of evidence of the content of the web page viewed by the accused at thetime he made his purchase was fatal to the determination of whether the material was child pornography.

In that case, part of theevidence presented by the Crown was computer records or files with names including words that could suggest child pornography.Although the name still existed, the content of the files no longer existed at the time the police examined them and thus they could not beviewed. The judge found that it is not sufficient for the name of the files to raise the suspicion that they could be child pornography. Thismust be determined by viewing the file itself. On this issue, the judge stated the following: [23] Corporal Obieglo also examined the “jump list” found on the internal hard drive.

As the officer explained it, a file name is added toa list as soon as that file is opened. That list, referred to as a “jump list” is stored and is easily accessible to the user. It thus allows theuser to gain rapid access to recently used or frequently used files. [24] Corporal Obieglo found that 24 of the items listed on the internal hard drive's jump list contained keywords and terminologysuggesting that the files to which they relate contain child pornography.

The files themselves have disappeared, however, so that theofficer was not able to view any of them to assess and categorize their contents. … [26] The more serious problem is that in the absence of the actual files, it is not possible to reach the definitive conclusion thatany of them contain child pornography. Just as a book cannot be judged by its cover, a video file cannot be categorized as childpornography without viewing it. As Corporal Obieglo himself conceded in his testimony, “you can name a file anything”: Evidence ofCorporal Obieglo, August 9, 2017, transcript page 82.

I note that the forensic evidence in the present case differs from that in R. v.Waygood, [2016] B.C.J. No. 2917 (SC); affd. 2018 BCCA 409 (at paragraph 7(p)) in which the investigator was able to “sample” thefiles listed on the jump list and thereby identify them as containing child pornography. [27] It is obviously suspicious to find a jump list containing multiple titles with telltale descriptions or “tags” that at least imply thepresence of child pornography. It is difficult to imagine that none of the suspicious titles relate to the possession of actual files containingchild pornography.

But in a criminal proceeding, suspicion is not proof. There may be various ways in which the link between thesuspicious titles and the presence of child pornography could be broken. Any of the videos themselves might not be playable, forexample. Perhaps more importantly, recognition must be given to the fact that the dividing line between child pornography and adultpornography is not always clear.

As I have already noted, Corporal Obieglo felt on at least one occasion during his investigation in thiscase that after viewing a video, he could not safely determine whether it contained adult pornography or child pornography. Surely itwould be impossible to make the distinction in the absence of any opportunity to view the video at all.[41] [Emphasis added.] [103] His conclusion in regard to that material was that, although it was highly suspicious, the evidence adduced was insufficient tocharacterize it as child pornography.[42] [104] A parallel can be drawn with the accused’s case.

The fact that he used certain keywords and visited websites before or after thepurchase could suggest that the accused wanted to purchase a sex doll that constituted child pornography.

But that evidence is notsufficient to establish the accused’s knowledge of the nature of the object and its characteristics in the absence of evidence of the contentof the web page he visited at the time of the purchase, combined with the fact that he had not yet opened the package at the time of thesearch on June 8, 2017. [105] In addition, the appearance of the box delivered to his home on June 8, 2017, provides no indication of the nature of the objectinside or its characteristics.

What is more, the description of the package by UPS provides no indication of the nature of the object insidethe box or its characteristics, nor does the exporter’s invoice or the invoice intended for the accused. [106] Did the accused display wilful blindness? The Supreme Court has indicated that wilful blindness can substitute for actualknowledge when knowledge is an essential component of the mens rea: [21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledgewhenever knowledge is a component of the mens rea.

The doctrine of wilful blindness imputes knowledge to an accused whose suspicionis aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make thoseinquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, (SCC),[1995] 4 S.C.R. 55.

As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmativeanswer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him withknowledge?”[43] [107] In other words, as noted by the Court of Appeal in McClelland,[44] the doctrine of wilful blindness as a legal concept means: [translation] … a legal inference of guilty knowledge attributed to an accused on the basis of his or her doubts about the existence of a significant factoccurring during some activity.

Despite this state of mind, the accused deliberately chooses to abstain from seeking further informationso as to be able to invoke ignorance of that fact if necessary.[45] [108] In Tremblay,[46] Bonin, J.C.Q. stated that evidence of knowledge of the possession of child pornography may be inferred fromwilful blindness:

[ translation ] [20] Intent to control or possess may itself be inferred from intent that is expressed or from intent that can be inferred beyond a reasonable doubt from the facts or from wilful blindness. It now appears that knowledge of an accused as to the nature of prohibited item ..., may be proved only by actual knowledge or by wilful blindness. Wilful blindness arises when a person has become aware of the need for an inquiry but declines to make the inquiry because he does not want to know the truth. In other words, the accused has his suspicions aroused but decline to make the necessary inquiry.

Wilful blindness requires "deliberate ignorance". [21] Wilful blindness or wilful ignorance from which intent can be inferred is evidence that allows the Court to deduce, beyond a reasonable doubt, even by circumstantial evidence, that despite the fact that the accused deliberately ignored his or her doubts about the elements making up the actus reus of the offence, he or she had knowledge of the fact.

Moreover, wilful blindness must be distinguished from mere negligence, the evidence of which is insufficient for a conviction in the context of an offence under the Criminal Code requiring evidence of general intent. [47] [ 109 ] The analysis of willful blindness is assessed subjectively, that is, on the basis of the accused’s conduct.

In McClelland , [48] the Court of Appeal stated: [ translation ] [91] … while the applicable test focusses on the accused’s mental functioning, the accused cannot impose his or her own value system to conclude that what is alarming in everyone else’s eyes is not alarming to him or her. It is therefore necessary to distinguish between the accused’s reasoning assessed subjectively and the actual circumstances with which the accused is confronted.

Viewing things otherwise would subject the logic of justice to that of the accused. [49] [ 110 ] That being said, wilful blindness is based on a probability, that is, a possibility greater than the average, or where it can almost be said that the accused actually knew. [50] In

summary, it consists of [ translation ] “a real, genuine doubt, or, if one prefers, a serious doubt; all these expressions are equivalent”. [51] [ 111 ] On this issue, the Court finds that the accused was not wilfully blind. The evidence reveals that he did not act in a secretive or clandestine manner. In support of this conclusion, the underlying facts are that the accused used his personal contact information for the purposes of ordering and purchasing the sex doll, i.e., his telephone number, his residential address, and his email address.

Moreover, he provided all the documents requested by the CBSA, including the purchase invoice in his name, the payment, and his health insurance card as an identification document. [ 112 ] But there is more. The computer evidence concerning the search terms used by the accused in his Mac computer’s browsing history is revealing. It does not indicate that he was specifically seeking a child sex doll. He never used any of the following search terms: “child, children, young, youth, girl, girly, juvénile , junior, kid” or “baby”.

He did use the search term “teen sex doll” seven times, but according to the testimony of the lead investigator, Olivier Simard of the SPVQ, who is specialized in the area of child pornography, in [ translation ] “adult pornography” language, those English words do not mean persons under the age of 18 years. [ 113 ] Similarly, the Court attributes relative reliability to the Excel file [52] that led to the production of the schedules by Sergeant- Detective Simard. [ 114 ] According to the Crown’s evidence, when a user clicks on a particular search result, using the Google search engine for example, that leads to a web page connected to a URL link.

It is not possible to see the content of the URL link before clicking on the site. It is not possible to establish how much time the user spent on a web page or what the user did. In addition, there may be a URL link that is broader than the search term used. As Officer Simard explained, a website may be volatile and evolve over time.

It is therefore impossible to establish with any certainty what the accused visited and viewed on April 17, 2017, when he placed his order. [ 115 ] In any event, even granting greater value to the Excel file created by Investigator Simard, the proportion of websites visited involving sex doll dolls with the appearance of a person under the age of 18 years represents a very small percentage of the 3,768 URL links extracted from the accused’s Mac computer using specific keywords. [53] [ 116 ] Because it is impossible to know what the accused viewed with any certainty, the Court cannot draw any inference in law of guilty knowledge to attribute to the accused on the basis of his visits to these websites.

Nor can the Court conclude that there was wilful blindness in view of his conduct assessed in light of all the circumstantial evidence. [ 117 ] The Crown also emphasizes the fact that the accused consulted the Harrison case from Newfoundland online twice, once before and once after purchasing the sex doll on April 17, 2017. It submits that these consultations establish a highly specialized search for legal information and represent conduct consistent with his guilt. [ 118 ] In light of all the circumstantial evidence, the argument is untenable. Perhaps it is the case.

However, the evidence indicates that the accused is a lawyer, and consulting the Harrison case may be explained on perfectly innocent grounds, such as an interest in that unusual case because of his professional status or personal curiosity. It should also be added that the Crown’s evidence is silent on the existence or nonexistence of other searches on other subjects of interest. [ 119 ] In

summary, the cumulative effect of the searches conducted by the accused and the websites he visited do not lead to the sole rational or reasonable conclusion that he was looking for a sex doll with the appearance of a person under the age of 18 years. The Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [ 120 ] Although some of the web pages visited by the accused before or after the purchase of the sex doll on April 17, 2017, are suspicious, they cannot lead to his conviction beyond a reasonable doubt.

[ 121 ] The position advanced by the accused that he wanted to order a small sex doll with a small chest, without it representing a child or a person under the age of 18 years, could be another rational or reasonable conclusion based on evidence assessed logically and in light of human experience and common sense.

It is not mere conjecture or speculation, even if the sex doll does constitute child pornography. [ 122 ] The Court finds that the gap in the Crown’s evidence, and more specifically the absence of evidence of the contents of the web page visited by the accused at the time of the purchase or of an invoice or some document from the exporter establishing the purchase of a sex doll having the appearance of a person under the age of 18 years, grounds a reasonable inference other than his guilt.

FOR THESE REASONS, THE COURT: [ 123 ] ACQUITS the accused on all counts. __________________________________ (SIGNED) JEAN ASSELIN, J.C.Q. Mtre Valérie Lahaie Criminal and penal prosecutor Mtre Gervais Labrecque and Mtre Kamy Pelletier Counsel for the accused