2011 QCCA 2157, 2011 QCCA 2157

Unofficial English Translation Gagné c. R. 2011 QCCA 2157 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004571-103 and 500-10-004783-104 (450-01-056040-087) (450-01-056040-087 and 450-01-058697-090) DATE: November 22, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) JOËL GAGNÉ APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] In court docket 450-01-056040-087, the appellant was convicted of the following charges in a judgment rendered on January 12, 2010, by the Court of Quebec, criminal and penal division, District of Saint-François (the Honourable Judge Conrad Chapdelaine), which was then corrected on March 3, 2010: [ translation ] 1. Between January 6, 2008, and August 13, 2008, at East Angus, District of Saint-François, did produce, print or publish child pornography, thereby committing the indictable offence set out in

section 163.1(2) (

a) of the Criminal Code . 2. Between January 6, 2008, and August 13, 2008, at East Angus, District of Saint-François, did distribute child pornography, thereby committing the indictable offence set out in

section 163.1(3) (

a) of the Criminal Code . 3. Between January 6, 2008, and August 13, 2008, at East Angus, District of Saint-François, did have in his possession child pornography, thereby committing the indictable offence set out in

section 163.1(4) (

a) of the Criminal Code . 4. Between January 22, 2008, and May 7, 2008, at East Angus, District of Saint-François, did communicate, by means of a computer, with a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1),

section 155 or 163.1, subsection 212(1) or (4), or

section 271, 272 or 273 with respect to that person, thereby committing the indictable offence set out in

section 172.1(1) ([should read a ]) (2)(

a) of the Criminal Code . [ 2 ] That same day, in court docket 450-01-058697-090, he pleaded guilty before the same judge to the following charges: [ translation ] 1. On or about July 9, 2008, at East Angus, District of Saint-François, did communicate, by means of a computer, with a person who is, or who the accused believes is, under the age of 16 years, using the handle "frimousse", for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 280 with respect to that person, thereby committing the indictable offence set out in

section 172.1 (2)([should read b ]) of the Criminal Code . 2. On or about July 3, 2008, at East Angus, District of Saint-François, did communicate, by means of computer, with a person who is, or who the accused believes is, under the age of 16 years, using the handle "shorthing", for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 280 with respect to that person, thereby committing the indictable offence set out in

section 172.1(2) (

a) of the Criminal Code . [ 3 ] He appeals the conviction on the first three counts in court docket 450-01-056040-087 and the overall sentence of eighteen months of imprisonment ordered on October 19, 2010, for all six charges, in both files.

[ 4 ] The facts are not disputed. [ 5 ] Between January 6, 2008, and August 13, 2008, during a number of chat conversations on the MIRC and MSN networks, the appellant attempted to convince a mother to leave her two young children with him for a few hours in order to sexually assault them or obtain sexual favours from them in exchange for consideration. [ 6 ] Between January 22, and May 7, 2008, the appellant communicated by computer on three occasions with a young girl who was, or whom he believed to be under the age of 14 years, to engage in sexual activity with her for consideration. [ 7 ] Police officers found these conversations on the appellant's computer.

Appeal from the conviction in court docket 450-01-056040-087 [ 8 ] Child pornography is defined as follows in the Criminal Code : 163.1

(1) In this section, child pornography means: ... (

b) Any written material , visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act; (

c) Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or [Emphasis added.] [ 9 ] The parties agree that the content of these exchanges "advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under" the Criminal Code . [ 10 ] The trial judge further thought it obvious that the dominant characteristic of the content of these exchanges was the "description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under" the Criminal Code .

This is not disputed. [ 11 ] The only issue in dispute, according to the appellant is: [ translation ] Whether the content of these written conversations, carried on between two persons in a chat room, constitutes child pornography as defined in

section 163.1 of the Criminal Code . [ 12 ] Do these comments constitute an offence if they are written in the context of a computer chat? In short, is online chatting writing? [ 13 ] The Criminal Code defines "writing" in its

section 2 : “writing” includes a document of any kind and any mode in which, and any material on which, words or figures, whether at length or abridged, are written, printed or otherwise expressed, or a map or plan is inscribed. [ 14 ] Thus, in paragraphs 163.1(1)(

b) and (

c) Cr. C. , by the expression "any written material", Parliament intended "a document of any kind" and "any mode in which, and any material on which, words or figures, whether at length or abridged, are written, printed or otherwise expressed...". [ 15 ] Moreover, the

Interpretation Act , [1] which does not contradict the Criminal Code , defines "writing" as being: 35.

(1) In every enactment, “writing”, or any term of like import, includes words printed, typewritten, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in visible form. [ 16 ] In R. v. Sharpe , the Supreme Court adds: [55] ...

Section 163.1(1)(

b) is confined to material relating to activity that would be a crime under the Criminal Code . Moreover, it is confined to material that “counsels” or “advocates” such crimes. On its face, it appears to be aimed at combating written and visual material that actively promotes the commission of sexual offences with children. [56] ... Again, Parliament’s purpose of capturing material causing a reasoned risk of harm to children may offer guidance. The mere description of the criminal act is not caught.

Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued. [2] [Emphasis added.] [ 17 ] The trial judge pointed out that the French word [chat] is the result of melding the words bavardage [chatting] and clavier [keyboard] [3] and it is defined as [translation] "an activity that allows an Internet user to have an interactive, real-time, written conversation with other users, through their respective keyboards". [4]

[ 18 ] With regard to chatting, the judge added: [ translation ] [20] Although it is a conversation, this conversation can be transmitted only in written format. [21] A writing may be found on paper or any other type of support such as an electronic one, as in this case. [ 19 ] Indeed, the product of chatting is a written conversation using words, whether at length or abridged, on electronic support, posted to a virtual forum, a Web page for example, or directly to the user's computer screen. They are not mere words that are lost as soon as they are expressed.

Chatting also allows the Internet user to read what was written previously, to save the conversation in electronic format, or to print it. [ 20 ] As soon as a person writes a word during a chat session, the product of this communication is placed on a server or computer. Regardless of its mode of representation, this word may be read within the meaning of the

Interpretation Act . [5] [ 21 ] The appellant argues that by using the term "writing" in

section 163.1 Cr. C. , Parliament intended "writings" such as books or essays, not conversations in online chat form between two persons; in his view, these conversations are not "writings" or "documents". [ 22 ] Nothing in paragraphs 163.1 (

b) or (

c) Cr. C. or in the definition of "writing" found in

section 2 Cr. C. supports the appellant's contention. First, according to

section 2 Cr. C. , not only is a writing a "document of any kind", but it is also "any material on which, words or figures, whether at length or abridged, are written, printed or otherwise expressed". Also, "child pornography" means, inter alia , "any writing" corresponding to the description set out in paragraphs 163.1 (

b) and (

c) Cr. C. [ 23 ] The appellant also submits that it is

section 172.1 Cr. C. that criminalizes chatting, not 163.1 Cr. C. In his view, paragraph 172.1(1)(

b) Cr. C. loses its raison d'être if chat conversations are included in the definition found under

section 163.1

(1) Cr. C. [ 24 ] These two offences have different essential elements. To commit the offence of luring set out in

section 172.1(1) (

b) Cr. C. , the adult need not have had a conversation containing pornographic materials to gain the trust of a person who is or who the accused believes is under 18 years old, under 16 years old, or under 14 years old, as the case may be, for the purpose of facilitating the commission of an offence set out in the Criminal Code with respect to that person. Yet, to commit the offence of production, distribution or possession of written child pornography defined in

section 163.1(1) Cr. C. , "sexual activity" must necessarily be involved. [ 25 ] In short, if the offence set out in

section 172.1 Cr. C. criminalizes computer communications with persons who are under 18 years old for the purpose of facilitating the commission of sexual offences,

section 163.1 Cr. C. instead criminalizes, as in this case, the possession, distribution and production of pornographic writings respecting children. In fact, under subsection 163(1), communications with adults are also included. [ 26 ] Thus, the trial judge did not commit any error by deciding that the chat conversations in which the accused participated were writings within the meaning of paragraphs 163.1(1) (

b) and (1)(

c) of the Criminal Code , in light of the mode of transmission of the communication (written format) and the support enabling its reading. [ 27 ] The appeal from the conviction is therefore dismissed. Appeal from the sentence imposed on October 19, 2010 [ 28 ] The appellant concedes that if his appeal from the conviction on the first three counts in court docket 450-01-056040-087 is dismissed, the appeal from the overall sentence of eighteen months of imprisonment ordered for all six counts, in both files, becomes moot since it is reasonable.

He is right. [ 29 ] Indeed, the Court established the range of applicable sentences for similar offences in St-Pierre v. R .: [ translation ] - for offences of distribution and possession of child pornography (subsection 163.1(3) Cr. C. , sentences vary between 6 months and 2 years. ... - for offences of production of pornographic materials (subsection 163.1(2) Cr. C. ), sentences vary between 10 months and 2 years. ... - for luring (section 172.1 Cr.

C. ), sentences vary between 6 months and 1 year of imprisonment. [6] [ 30 ] An overall prison sentence of eighteen months for the six counts, with a three-year probation order is neither excessive nor unreasonable under the circumstances. [ 31 ] In fact, the sentence imposed by the trial judge is the one the appellant had suggested in his submissions on sentencing. [ 32 ] Consequently, the appeal is dismissed. FOR THESE REASONS, THE COURT: [ 33 ] DISMISSES the appeal with respect to both conviction and sentence.

FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Mia Manocchio Rancourt Manocchio For the appellant Mtre André Campagna Criminal and penal prosecutor For the respondent Date of hearing: October 26, 2011