2011 QCCQ 2419, 2011 QCCQ 2419

R. c. J.R. 2011 QCCQ 2419 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and penal division” No.: 500-01-003507-073 DATE: March 23, 2011 ____________________________________________________________________ PRESIDING: THE HONOURABLE MANON OUIMET, J.C.Q. ____________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTRIX v. J. R.

ACCUSED ____________________________________________________________________ JUDGMENT ____________________________________________________________________ [ 1 ] On October 28 and 29, 2010, December 13, 2010, and February 2, 2011, J. R. was tried on four counts relating to child pornography. He was accused of possessing, producing, distributing and accessing child pornography between August 22, 2006, and March 20, 2007. [ 2 ] The accused is a young man who was found by his employer looking at child pornography during his working hours.

The police investigation led to a search of computers and of a USB flash drive used by the accused. Following his arrest, the accused made an incriminating out-of-court statement. [ 3 ] The prosecution’s evidence was not disputed. [ 4 ] The defence presented a defence of not criminally responsible by reason of mental disorder. It argued, in the alternative, that the accused did not have the requisite criminal intent. It also disputed the fact that the printing of an image of child pornography, for strictly personal purposes, is caught by the offence of production under

section 163.1(2) of the Criminal Code . Facts [ 5 ] The prosecution evidence was admitted by the defence. This evidence revealed the following: [ 6 ] In summer 2006, J. R. was 19 years old. He worked for company A, managed by E. B. and Ju. G. For the accused, this was a summer job between his last year of high school and CEGEP (general and vocational college). [ 7 ] Around the end of July or the beginning of August 2006, Ju. G. found a red binder belonging to the accused in the company’s washroom. This binder contained photographs of child pornography.

She warned the accused that she did not want to ever see this type of material in his possession again, or she would report him. [ 8 ] A few weeks later, the accused’s employers saw an image of child pornography on his computer screen. A quick search of his computer revealed six other images of the same nature. E. B. also discovered that the accused had [TRANSLATION] “chatted” online and had requested photos while at work that morning. [ 9 ] That same day, the police were informed, and an investigation was begun. The computer used by the accused at work was given to the police for assessment.

This assessment revealed the presence of 249 photographs of child pornography involving children between the ages of three and fifteen. [ 10 ] On March 30, 2007, the accused was arrested. He made a videotaped statement. The following is a

summary of that statement, filed as Exhibit P-5: • In August 2006, the employer of the accused at company A found compromising photographs on his computer. (The accused recognized certain photographs shown to him by the investigator). • This was not the first time he had been in possession of this type of material since a few weeks earlier his employer had

found a binder containing several photographs belonging to him that he had forgotten in the company’s washroom. • His father had also found images of child pornography on the family computer and had warned him not to do that again.

The last time, he had told him that if he found any more, he would kick him out of the house • Despite this warning, he had been [TRANSLATION] “an idiot”; he had fallen back [TRANSLATION] “into it” and he had continued to [TRANSLATION] “do that” until August 2006, but he had not done it since then. • He had been communicating with people online, [TRANSLATION] “chatting” with about fifty people, and that is how he received or sent images. It was a way for him to feel appreciated. At one time, he had created the persona of a fourteen-year-old boy, named Samuel, to exchange photographs.

Some weeks, he chatted three or four times, but other weeks, nothing happened. • He had erased image files and emails with image file attachments on the morning of the police interrogation. He admitted that there was still material on a USB flash drive at his home. There was also material on his Yahoo site as well as in his personal account on the computer network of CEGEP A. [ 11 ] Following the accused’s statement, searches were conducted. The USB flash drive contained 797 files of child pornography. In the computer at his family home, traces of 3,382 files of the same type were found.

In the accused’s network drive space at CEGEP A, 250 files of child pornography were found. [ 12 ] The contents of the accused’s Yahoo email account were also analyzed: between August 2006 and January 2007, 36 emails requesting child pornography were sent and 50 sent or received emails contained photographs or videos of child pornography. [ 13 ] In defence, the accused, his father, his mother and a psychosocial support worker testified. D. S. [ 14 ] A preliminary remark is required. Mr S. is not a physician, and he did not provide expert testimony.

During his testimony, he often referred to what physicians, psychologists, psychiatrists and other caregivers have told him, over the years, about the mental disorder from which the accused suffers. That is hearsay. Everything the witness reports having been said to him by other people and everything that relates to the area of medical opinion is not proof of the facts it asserts for the court.

The telling of these facts and comments was allowed to facilitate his testimony and the understanding of the story and/or to explain a reaction or an action of the witness. [ 15 ] Obviously the question of the evidence of the diagnosis itself arises. Could the witnesses say that the accused suffers from a severe attention deficit disorder? The prosecution’s objection regarding the admissibility of this evidence was dismissed based on common sense. It is not the fact that the accused suffers from ADD that is at issue; it is the impact of this disease on intent and criminal liability.

The witnesses rightly reported events and symptoms; they spoke about the effect of the medication and the lack of medication. Under these circumstances, the Court allowed the medical diagnosis to be reported even in the absence of expert evidence. [ 16 ] D. S. is the father of the accused. Beginning in junior kindergarten, the child began to have difficulties with fine motor skills. In his first year, he had serious learning difficulties. The accused has never had problems with behaviour or aggression, but he was a grumpy, sullen child.

It was difficult to communicate with him. [ 17 ] In 1994, when he was seven years old, following a psychological evaluation, he was diagnosed with a severe attention deficit disorder (ADD). A paediatrician prescribed Ritalin, which proved very effective. The accused was followed by his paediatrician until he was eighteen. [ 18 ] The parents did everything they could to help their son. He received special attention at school as well as one year of occupational therapy.

He was sent to a specialized private school, where he completed almost all of his primary school education and three years of high school, with no failures. He finished his secondary studies at a regular high school. [ 19 ] In the summer of 2005, the accused turned eighteen. His paediatrician gave him a final prescription for Ritalin. Things seemed to be going well: His studies were proceeding normally, and he had a part-time job.

As if feeling guilty, the witness provided all kinds of reasons – a return to school, an accident, a move - to explain why, at that time, his parents were less present in their son’s life. [ 20 ] In fall 2005, the father found some images of child pornography on the family computer. He discussed this with the accused, who explained that it had arrived “by accident” with some music he had downloaded. [ 21 ] In December 2005, a family doctor renewed the paediatrician’s Ritalin prescription for six months. The accused did not see that physician again and, as a result, in summer 2006, he ran out of medication.

The witness explains that, at that time, father-son communication was not at all good. The son did not understand his parents’ point of view. He did not do what he was told. He did not follow instructions. He forgot what he was supposed to do. [ 22 ] In spring 2007, he was able to get an appointment with a neurologist. The appointment was scheduled for the morning of March 30, 2007, and the accused went there alone.

He obtained a new prescription for Ritalin. [ 23 ] The witness was informed of his son’s legal difficulties when the police arrived at his home to seize the USB flash drive and the computer on the evening of March 30, 2007. The police told him briefly what was happening without giving him details of the investigation. [ 24 ] The witness fears that the accused suffers from schizophrenia. After the arrest, his parents insisted that he be sent to the Institut Louis-Philippe Pinel. The witness is very dissatisfied with the work done by the physicians.

They simply changed Ritalin for Concerta, a similar medication, and adjusted the dosage. They met only with the accused and were thus never informed that his young

first cousin is schizophrenic and is institutionalized at Pinel for the murder of his parents. [ 25 ] The witness explained his many unsuccessful efforts to find an expert to help his son. He deplores the lack of medical resources for adults with ADD. A psychiatrist evaluated the accused in August 2007. He was then followed by a psychologist. In fall 2009, another psychiatrist evaluated the accused before simply referring him to the CLSC (the local community health centre).

Currently, the accused is seeing a neurologist for his Concerta prescription; he is also seeing a psychologist. [ 26 ] In short, according to the witness, it is clear that the accused needs medication to understand and function well and that at the time the offences were committed, he was not taking any. Since spring 2007, he has been taking his medication and is doing much better. The witness says that since the accused has been receiving psychological support, he is unrecognizable. Their father-son relationship is much better. The accused is being trained to be an assistant-cook and is working hard at that. I.

M. [ 27 ] I.M. is the mother of the accused. When her son was arrested, he was living at home. She ran a day care centre, which is no longer in operation. [ 28 ] From a young age, the accused behaved in ways that indicated there was a problem with his mental development, because he had motor and

interpretation problems. He was finally diagnosed with ADD and received medication and support throughout his childhood. [ 29 ] When he reached adolescence, his parents monitored his behaviour less carefully to give him more independence. They had also been told that the ADD would diminish with age. [ 30 ] From the age of 14, the accused was in charge of his own medication. He demonstrated a certain level of maturity, attending school and holding down a part-time job, so his parents thought that everything was fine.

Their relationship with their son did become more strained when he reached adolescence with regard to his curfew, for example. He also did not follow instructions, and he was not communicative. When he returned home, he would go straight to his room. [ 31 ] She was never informed that her husband had found child pornography on the computer. [ 32 ] In summer 2006, her son was working and it seemed that things were going well for him. She only learned what had happened on the day he was arrested in March 2007.

When she spoke to him about it, he told her that he did not know why he had done it, but he did not want to talk about it. [ 33 ] Since 2007, with the appropriate medication and regular follow-up, the accused is no longer the same young man. J. R. [ 34 ] He admits the facts: He looked at, accessed, or transmitted pornographic images once or twice a week during the period covered by the charges. He printed pornographic images and placed them in a binder that he hid and carried around with him and looked at. He created email addresses and used various identities to exchange images online.

He exchanged more than fifty emails to obtain or send child pornography. [ 35 ] He looked at child pornography on the family’s computer, on the computer at his workplace, and at various computers at his CEGEP, when there was nobody else around or at the end of the day. [ 36 ] He does not know why he looked at child pornography. He felt a tension that pushed him to look at those images, after which he felt freed or relieved. [ 37 ] During his adolescence, he went through a period of feeling ambivalent about his sexuality. He hesitated between the three (sic).

Now, he looks at women and is no longer interested in young people. [ 38 ] At the time of the offences (August 2006 to March 2007), his relationship with his parents was difficult, especially with his father. He did things without their knowledge and did not tell them the truth. Instead, he told them what they wanted to hear. He put on

an act for them. For example, he hid the fact that he had applied for a credit card and bought a cell phone. He was caught when they received a bill for the credit card in the mail. [ 39 ] From the age of sixteen, he has held several part-time jobs in addition to attending school. He worked at [Company A], at [restaurant A] and elsewhere, but he often lost his job because of his immaturity, which allowed him to be easily distracted. He is currently taking courses in the food industry. [ 40 ] The accused spoke about his attention deficit disorder. He explained how he felt with and without medication.

He says that at the time he committed the offences, he was not really able to understand that it was wrong to look at images of naked children because he has an attention disorder and was not taking his medication. He was immature and carefree and yielded to his desire to look at child pornography even after he was warned, first by his father and then by his employer. [ 41 ] For a long time, he did not see the point of taking his medication every day. He did not like the effect of the Ritalin, because it decreased his energy level and his enjoyment of life.

He believed he was able to perform well enough so that when he did not have a particular need to focus on something, he preferred not to take his pills; he then felt a stronger desire to go out with his friends and have fun. He knows now that he must always take his medication. He gave different answers as to the time he began taking his medication as prescribed. At one point he said 2009, and at another point he said 2010.

[42] To demonstrate the strong link between his poor academic performance and his failure to take medication, the accused filedas exhibit D-1 his transcript from CEGEP A, the college he attended between fall 2006 and spring 2008. Marie- Noël Perron. [43] Ms. Perron is a psychosocial support worker. She met the accused in May 2007 when he came to live at the group homewhere she worked. This is a centre that takes in young street people. The organization responsible for the group home helps these youngpeople to find jobs and organize their lives.

After a stay at the group home, the young people may be sent to supervised housing for atime before being left to their own devices. [44] Because of the nature of the charges against the accused and the fact that his mother ran a day care centre in the family home,to regain his freedom, the accused had to find somewhere else to live. Given his lack of maturity and financial resources, he was sent tothe organization where the witness was working. [45] After a stay at the group home, the accused was sent to a supervised housing facility.

One day, as a prank, he threw jars ofcondiments at the wall of the building next door. He was expelled from the facility. [46] The witness, who now works for a housing maintenance program, nevertheless stayed in touch with the accused because shehad looked for a resource for people like him but couldn’t find one. She continued to meet with him because she felt that he was sociallyisolated, that he has low self-esteem, and that he was, at one point, at risk of suicide. She meets with him regularly, hears his news, andencourages him to talk.

She listens to him, congratulates him, and bolsters his self esteem. [47] The witness feels that the accused has made tremendous progress in the past three years. He demonstrates much greatermaturity and independence. Three years ago, he said everything that popped into his head, behaved foolishly, thought he was beingfunny and did not understand the reactions of others. Now, he does his own laundry and housework, arrives on time for appointments, ismuch better organized, and is no longer impulsive. He thinks before speaking. Issues A.

Does the evidence show that the accused was not responsible within the meaning of

section 16 of the Criminal Code? B. Has the prosecution proved the criminal intent of the accused beyond a reasonable doubt? C. Is the printing of downloaded images of child pornography for personal use covered by the offence contemplated by

section 163.1(2)of the Criminal Code? Insanity defence [48] Defence argues that the evidence shows on a balance of probabilities that the accused suffers from an attention deficitdisorder with hyperactivity, that he was not taking his medication at the time the offences were committed, and that, without medication,he was not aware of what he was doing.

He should not be held responsible for the crimes committed. [49] It argues in the alternative that the evidence raises a doubt as to the criminal intent of the accused. [50] The prosecution argues that the defence of not criminally responsible requires expert evidence and that, in the absence of suchevidence, the defence has not discharged its evidentiary burden. Even if that defence were available, it does not have sufficient weight tomeet the requirements of

section 16 Cr. C. The law [51] The criminal law assumes that people are of sound mind and responsible for their acts. Our justice system recognizes thatchildren under 12 are not liable for criminal charges and that young people under 18 are subject to a special regime. That is the YouthCriminal Justice Act, which contains special rules of procedure and evidence as well as an arsenal of youth sentences. [52] While it is true that, starting at age 12, any person may be charged,

section 16 of the Criminal Code stipulates that no personis criminally responsible for

an act committed while suffering from a mental disorder that rendered the person incapable of appreciatingthe nature and quality of the act or of knowing that it was wrong. [53] Since, in the eyes of the law, every person is presumed to be of sound mind, to avoid criminal responsibility, it is necessary toprovide sufficient evidence to rebut that presumption. This is a heavy burden; it is necessary to convince the judge. In R. v.

Chaulk, (SCC), [1990] 3 S.C.R. 1303, the Supreme Court confirmed that the accused’s obligation to establish his insanity on a balanceof probabilities is constitutionally valid. [54] The notion of mental disorder in criminal law encompasses a legal reality.

In Cooper v. the Queen, (SCC),[1980] 1 S.C.R. 1149, Dickson J., writing for the majority, states that in a legal sense, “disease of the mind” embraces any illness,disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused byalcohol or drugs, as well as transitory mental states such as hysteria or concussion. [55] This is thus a legal concept that, for obvious reasons, contains a substantial medical component. Thus, the psychiatricassessment provides an opinion of the signs and symptoms of a disease and how that disease is described in medicine.

This makes itpossible to describe the mental condition of the patient and what that implies from a medical perspective. In our legal system, thequestion of whether a person suffers from a mental disorder is a question of law. As it is a question of law, a psychiatric assessment is

not compulsory or determinative. (See R. v. Stone, supra, para. 195 and 196 and Collection de Droit de l’école du Barreau 2010-2011,Droit pénal, infractions, moyens de défense et peine (Yvon Blais) at 201 and 201). [56] For this reason, a disease, considered to be a mental illness by medicine, does not automatically constitute, in law, a mentaldisorder justifying an exoneration from criminal responsibility.

In his work Traité de droit criminel, Vol. 1, 3d ed. (Thémis, 2009), Parenthas compiled an interesting parallel table of mental disorders in medicine and in law that illustrates the difference well. [57] Indeed, the presence of a mental illness is not enough. It is also necessary to meet one of the specific requirements set out insection 16 Cr.

C., i.e., proving that the disorder rendered the person incapable of appreciating the nature and quality of the act or provingthat the disorder rendered the person incapable of knowing that it was wrong. [58] The capacity to appreciate the nature of one’s acts refers to a person’s capacity to know what they are doing and to recognizethe physical consequences of their acts. See Kjeldsen v. The Queen, (SCC), [1981] 2 S.C.R. 617. This means knowing,for example, that violently striking a person on the head with a large rock is likely to lead to injuries that could cause death.

The test ofthe capacity to judge the nature of

an act and its consequences is not a high test. [59] The second test is that of knowing that

an act is wrong. This refers to the capacity to rationally assess, at the time the offencewas committed, the rightness or wrongness of

an act. See R. v. Oommen, (SCC), [1994] 2 S.C.R. 507. In that case, theaccused suffered from paranoid psychotic delusions causing him to sincerely believe that the murder was justified. He was deprived ofthe capacity to know that the act of killing is

an act that deviates from a public standard of wrong or community morality. [60] The question of whether, at the time of the offence, the accused suffered from a mental disorder that rendered him incapableof appreciating the nature of the act and knowing that the act was wrong is a question of fact that the trier of fact must answer. Analysis of the question of criminal responsibility [61] In Cooper, supra, the Supreme Court gave a broad definition of a mental disorder, namely, any disorder or abnormal conditionthat impairs the human mind and its functioning.

Any person who, like the accused, has had to take medication since early childhood tobe able to concentrate suffers from a mental disorder. [62] It remains to be determined whether the evidence has shown that because of his mental disorder the accused was incapable ofappreciating the nature of his acts or incapable of knowing that those acts were wrong. The answer is “no”. [63] The accused speaks about his inability to exercise his judgment and about the existence of an impulse pushing him to look atchild pornography when he did not take his medication.

His father states that the accused needed medication to understand what he wastold and to act reasonably. [64] The analysis of the accused’s testimony reveals that he admitted the facts, but did so while knowingly seeking to minimize hisresponsibility and his knowledge that it was wrong to do what he did. Both during his testimony before the Court and when questionedby the police, the accused lacked transparency and candour. He constantly tried to manipulate the truth to defend his interests and did soin a very clumsy manner.

He himself admits his capacity, not to mention his willingness, to lie to his parents and admits having lied tothe police. [65] The Court does not believe the accused when he claims that he did not know that it was wrong to look at child pornography,since his father had warned him about it three times.

He says that for him it was a minor warning or a slap on the wrist of no importance.After being warned by both his father and his employer, the accused certainly knew that his behaviour was illegal. [66] The accused admits that he took his binder of photographs with him to work and that he hid it so no one would find it. TheCourt does not believe him when he says that he just wanted to protect his privacy. He had been warned and he hid his binder to hide hisoffence. The Court does not believe the reason given by the accused for taking the binder into the washroom.

The binder was tuckedaway in his personal backpack and there was no danger of anyone searching his backpack during the few minutes he spent there. He tookhis binder to the washroom to indulge his desire to look at pornographic images. [67] He admits to having thrown away the incriminating binder and erasing about a hundred emails in March 2007, just beforegoing to the police station.

The Court does not believe him when he refuses to frankly admit why he did that and tries to justify those actsas being the result of panic and impulse. [68] The accused says that he felt an urge, a tension, that the images relieved, but that the few times he took his medication duringthe period when the offences occurred, he did not feel that urge.

This does not prove that he did not know what he was doing or that hedid not know that what he was doing was wrong. [69] When viewing the videotape of the interrogation following his arrest, we observe that he has a certain capacity formanipulating the truth or, in other words, a certain willingness to lie. Under the guise of openness and transparency, he minimizes thefacts, giving a toned-down version of what happened. In fact, he doesn’t admit a fact or provide any information unless he believes thatthe officer questioning him already knows the answer.

He never volunteers additional information. [70] With regard to the content of the pornographic material, he minimizes the seriousness of the facts by saying that the imagesshow people under 18; little by little, he admits that there were 13-year-olds.

Finally, when directly faced with the evidence, heacknowledges that the child in the photo shown to him by the investigator is probably 8 or 9. [71] With regard to the making of the binder, he begins by saying (obviously believing that it is advantageous for him to do so)that he printed the photos at the request of someone else; he finally admits that this is not true and that they were for his personal use. [72] In the beginning, he states with great assurance that he has not participated in activities connected to child pornography since

August 22, 2006 – the date he was reported to the police by his employer. The rest of the interview, the search that followed the interrogation and his trial evidence prove that this was completely false. [ 73 ] The accused tries, in his testimony before the Court, to revisit certain parts of his out-of-court statement by stating that he had said such and such a thing because he was out of medication and that he was starting to ramble.

The viewing of the videotape shows that he was not rambling at all and that his attitude was, at least on the surface, completely normal. [ 74 ] The father is convinced that, if his son had not suffered from an attention deficit disorder and if he had always taken his medication, he would not have committed the offences. The Court does not share his opinion.

It is obvious that the accused lacked judgment and maturity, which caused him to ignore the many warnings and to do as he wished, but the evidence does not allow for the conclusion that there was a sufficient causal connection between the disorder he suffers from and the commission of the offences. [ 75 ] The prohibited acts were committed on a regular basis over a period of approximately seven months, a period of time during which, according to his father, the accused had no medication.

For the father, only the lack of medication explains the offences. [ 76 ] The evidence reveals, however, that the accused had already had child pornography in his possession when he was 16 years old and that at the time he was followed by his paediatrician and taking medication. [ 77 ] What the evidence also shows is that the taking of Ritalin was never absolutely necessary for the accused. He took his pills when he needed to concentrate.

The lack of medication did not deprive him of his free will in his daily life. [ 78 ] It is true that the father stated that the behaviour of the accused altered completely after he saw a neurologist, who again prescribed Ritalin, on March 30, 2007. But, according to the accused, until recently – 2009 or 2010, since he gave two different answers to this question – he was still not taking his medication on a regular basis, since he did not see the need for it. [ 79 ] To show that the accused was incapable of functioning without medication, defence filed in evidence his CEGEP transcript.

This document in fact shows that his results were not much better with medication.

It also shows that in the fall 2006 semester, which coincides with much of the time period when the offences were committed, the accused earned marks of between 90% and 77%. [ 80 ] In the absence of expert evidence to the effect that, from a medical perspective, an attention deficit disorder can theoretically be serious enough to render a person incapable of knowing what they are doing, incapable of knowing that what they are doing is wrong, and that, in fact, the accused was affected to that extent, the Court can only analyze the evidence and interpret it with the knowledge that an ordinary person would be expected to have and based on the presumption that people are of sound mind. [ 81 ] The four-hour video recording of the accused’s interrogation was viewed.

In it, the accused talks about himself and about his attention disorder. He does not mention the fact that he had not been taking his medication for months, and he does not request medication. He does not say whether or not he had taken his medication on the day of the interview. [ 82 ] During the interrogation, the accused demonstrates normal intelligence and a good understanding of things. His behaviour is completely appropriate.

It is clear that the accused is attempting to play mind games with the investigator during the interrogation, but there is nothing unusual about that. [ 83 ] The Court also had the opportunity to observe the accused during the entire trial, including his performance on the witness stand. There was no difference between his behaviour during the police interrogation and his behaviour before the Court.

At the time of the police interrogation, however, he had been without medication for several months, according to his father. [ 84 ] The offences were committed on a regular basis over an approximately eight-month period. During this period, the accused worked part-time during the summer and during the school year. He attended CEGEP. He applied for a credit card. He bought a cell phone. When he returned home, he went directly to his room. He did not communicate with his parents and did not follow their instructions. In short, the accused led a completely normal life for a young person of his age.

Moreover, as she states, his mother believed that everything was fine. It is difficult to imagine that a person could be sick enough to be exonerated from all criminal responsibility and at the same time lead a normal life within a family that does not notice anything wrong. [ 85 ] The commission of the offences required a high enough level of knowledge, understanding, intelligence and awareness to manipulate various computers, use software, create profiles and email addresses for “chatting”, create a contact list, send material, and download and print images.

These are complex actions that are inconsistent with the presence of a mental illness rendering a person incapable of appreciating the nature and quality of their acts. [ 86 ] Nor does the evidence demonstrate that, because of his mental disorder, the accused did not know that his acts were wrong. He knew it, because his father and his employer had clearly told him so. He knew it, and it was to avoid being caught by his mother or father that he took his binder of photographs with him to work.

It is also because he knew it was wrong that at CEGEP he chose a computer in an out-of-the-way location or a time of day when he knew he would not be caught to “chat” or to look at pornographic images. He knew it, and he admitted this when he was arrested by saying that he had been an idiot. [ 87 ] In conclusion, the defence has failed to discharge its burden of showing, on a balance of probabilities, that the accused should not be held criminally responsible for the offences committed.

Proof of criminal intent [ 88 ] The conclusion on the defence of not criminally responsible does not relieve the prosecution of its obligation to prove that the accused had the required blameworthy state of mind. It would nevertheless be paradoxical if, having failed in his insanity defence, an accused were acquitted on the basis of a reasonable doubt raised by the same evidence. [ 89 ] In this case, the structure of each of the alleged offences reveals that the necessary criminal intent is simple. They are general

intent offences. A general intent offence is one for which the intent relates only to the performance of the act in question, without therebeing any further intent or purpose. It is the intentional and voluntary performance of

an act. The act is intentional if it is not the result ofan accident or a mistake. See R. v. Bernard, (SCC), [1988] 2 S.C.R. 833. [90] The concept of fault also implies that the accused had knowledge of the circumstances of the offences, in this case that heknew that the material exchanged and owned consisted of child pornography, i.e., photographic or filmed representations of a personunder the age of 18 years engaged in a sexual activity or representing for a sexual purpose their sexual organs.

Ignorance of the illegalityof the act is not relevant because ignorance of the law is not a defence. [91] The accused affirms that he did not know why he did what he did and that he felt a strong tension that pushed him to do it. Inthe context of the evidence as a whole, I do not interpret these words as meaning that the acts were not intentional but rather that it wasimpossible for the accused to understand his motivation or admit the sexual gratification that this activity afforded him.

Heacknowledges in his testimony that he had a sexual disorder and a sexual attraction to young people at the time by declaring that he wasconfused [TRANSLATION] “between the three” (sic). [92] Once again, the repetition of the conduct for approximately eight months, the sophistication and the number of acts necessaryto commit the offences, rule out the hypothesis of a fortuitous event, a mistake, or an accident.

The stratagems used to avoid discoveryalong with the admissions of the accused, both during the police interrogation and during his testimony before the Court, prove, beyonda reasonable doubt, that his actions were intentional and that the accused knew that he was dealing with child pornography. Production of child pornography [93] The accused printed pornographic material that he downloaded from the Internet and made into a binder.

He is accused ofproducing child pornography. [94] The prosecution argues that the words of the statute are clear: [TRANSLATION] “Every person who prints childpornography is guilty of the offence under

section 163.1(2) of the Criminal Code”. [95] The defence argues that it is necessary to interpret the word “print” in the context of the other terms used in the provision todetermine Parliament’s intention. It is printing for publication that is contemplated, not printing for personal purposes. Analysis [96] The debate focused on the definition of the word “print”. The count with which the accused is charged, however, is of havingproduced pornography, not having printed it. [97] A very similar provision exists with regard to obscenity. Section 163(1)(

a) Cr. C. prohibits the making, printing, publishing,distribution, circulation, or possession for the purpose of publication, distribution, or circulation of obscene matter. In Hawkshaw, (SCC), [1986] 1 S.C.R. 668, the charge was of having produced an obscene publication. The Supreme Court states thatsection 159(1)(

a) of the Criminal Code (now section 163(1)(a)) creates a number of offences that are separate and distinct, and that theconcept of publication involves no necessary element of production. [98] If section 163(1)(

a) Cr. C. lists distinct offences, the same

interpretation should prevail for

section 163.1(2) Cr. C. Thecharge against the accused is that of having produced pornographic material; the evidence reveals that he printed it. The charge thereforedoes not correspond to the offence committed, and there was no application to change the charge to make it conform to the evidence. [99] If the Court is in error, the Court in Hawkshaw, supra, considered more specifically the question of whether the concept ofproduction involves a necessary element of publication. The Court said that this offence was different from the other offencescontemplated in the same

section and did not involve an element of publication. [100] For the Supreme Court, therefore, the act of printing, referred to in section 159(1) Cr. C. (now 163(1)(a)) contemplates printingfor the purposes of publishing, distribution or circulation. [101] Once again, the similarity of sections 163 (1) (

a) Cr. C. and 163.1(2) Cr. C. is such that there is no reason to depart from therule that the same terms in the same statute must be interpreted in the same way. Consequently, the printing of a document for personalpurposes is not contemplated by

section 163.1(2) Cr. C. [102] There is also the fact that in Laliberté v. AMF, 2010 QCCA 1764, the Court of Appeal of Quebec noted that since BellExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, it has been established that “the words of

an Act areto be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of theAct, and the intention of Parliament” (para. 26). This is the so-called modern approach to statutory

interpretation. [103] The Criminal Code provisions on child pornography were enacted to ensure the protection of children. With the goal ofeliminating or fighting the phenomenon of the sexual exploitation of children, Parliament decided that anyone who produces or sellschild pornography should be punished more severely than consumers. The fact of producing or distributing child pornography is thus aserious crime, punishable by ten years in prison. Within the context of this provision, it is the making and publication of pornographicmaterial that is contemplated.

The act of printing must be interpreted within this framework and include the intent to produce, publish ordistribute. [104] Finally, there is a question of logic. The concept of possession has changed somewhat since the advent of virtual images. Onecan be in possession of a pornographic image without having a physical document. See R. v. Morelli 2010 SCC 8. The printing of anelectronic file changes only the medium on which the document or the image is found.

[ 105 ] The possession of child pornography carries a minimum term of imprisonment of fourteen days for a

summary offence or forty- five days for an indictable offence. [ 106 ] The production, including the printing, of child pornography is objectively a much more serious offence. The minimum sentences contemplated are respectively ninety days for a

summary offence and one year for an indictable offence. [ 107 ] If a person chooses to save an image in an electronic file, they are in possession of child pornography and face a minimum of fourteen days in prison. If that person chooses instead to print the same image and place it in a file folder in a filing cabinet, they would be guilty of production and face a one-year minimum sentence. [ 108 ] The

interpretation of a statutory provision should not lead to problematic applications or unjust situations. Such would be the case if the provision was interpreted in such a way as to include printing for personal purposes. Conclusion [ 109 ] The evidence shows, beyond a reasonable doubt, that between August 22, 2006, and March 30, 2007, the accused accessed child pornography, transmitted it, and had it in his possession. He is found guilty of counts 1, 3 and 4 in the information. He is acquitted on the charge of production in count 2. _____________________________ Manon Ouimet, J.C.Q. Mtre Rachel Pitre For the prosecution Mtre Alexandre Goyette For the defence