HER MAJESTY THE QUEEN - v. -, 2015 SKQB 353

QUEEN’S BENCH FOR SASKATCHEWAN 2015 SKQB 353 Date: 2015 11 13 Docket: NJ 31 of 2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN - and - SHAWN MICHAEL RHODE Counsel: Michael A. Segu for the Crown Michael D. Nolin for Shawn Michael Rhode JUDGMENT R.S. SMITH J.

November 13, 2015 [ 1 ] Shawn Michael Rhode is charged with the following: 1) Possession of child pornography contrary to s. 163.1(4) of the Criminal Code ; 2) Accessing child pornography contrary to s. 163.1(4.2) of the Criminal Code ; 3) Two counts of making child pornography contrary to s. 163.1(2) of the Criminal Code ; 4) Touching a child under the age of 16 for a sexual purpose contrary to s. 151 of the Criminal Code ; 5) Committing a sexual assault contrary to s. 271 of the Criminal Code . Background [ 2 ] Ironically, the genesis of the charges laid against Mr.

Rhode stem from his involvement with a Bible study group. The group was not a formal congregation, but rather a group of Christians who would meet more or less weekly, pray, study the Bible, read from the Bible and discuss what they had read. Mr. Rhode joined the group and over time frankly admitted to the group that he was drawn sexually to child pornography and to children and that he was trying to rid himself of that burden.

[ 3 ] The group did not reject Mr. Rhode in the face of that revelation. Rather they demonstrated they were truly Christians in that they allowed him to remain in the group so that he could seek redemption through Bible study and self-improvement. [ 4 ] The Bible study group often met at the home of Lee (a pseudonym) whose daughter [L.T.], who was six-years old at the time, would often be in the presence of the “congregation”. In one instance, L.T. was with the study group and was dressed lightly in summer clothes. Mr.

Rhode mentioned to Lee that he was uncomfortable with L.T. being scantily dressed as he was drawn to her. There is no question that Lee was alive to the temptations that plagued Mr. Rhode. [ 5 ] The incident leading to the charges took place on March 10, 2013. The group had assembled to read and discuss the Bible. Lee noticed that Mr. Rhode was visually fixating on L.T. who was moving in and about the group. He was tracking her with his eyes. [ 6 ] As the meeting drew to an end, it was standard procedure for L.T. to give everyone a hug. When she approached Mr.

Rhode, who was seated beside his wife and across from Lee, L.T. hugged Mr. Rhode and Mr. Rhode put his left arm around her back and his right arm down her back and cupped her buttocks. That distressed Lee. [ 7 ] Lee considered the matter for a couple of days and then decided to report the incident to the police. The police had had previous dealings with Mr. Rhode in relation to child pornography and took the necessary steps to obtain a search warrant. They then went to Mr.

Rhode’s home and effected various seizures of two laptop computers, various external hard drives and thumb drives (also known as flash drives). The police then conducted a forensic examination of the items seized. Suffice it to say, they unearthed a fetid digital swamp of child pornography. [ 8 ] As noted, Mr. Rhode faces six counts in the indictment. The first four relate to what was disclosed during the police investigation. Counts 5 and 6 relate to the hugging incident with L.T.

Analysis [ 9 ] In addressing the evidence and the charges, I have reminded myself that the Crown must prove each and every element of each and every count beyond a reasonable doubt. [ 10 ] With respect to Counts 1 and 2, namely possession of child pornography and accessing child pornography, the evidence against Mr. Rhode is overwhelming.

He downloaded a raft of child pornographic images and in that process he was extensively accessing child pornography. [ 11 ] The evidence points to the accused having the intention to access child pornography and taking possession of it by way of downloading it knowing the character of the material that he was taking possession of. [ 12 ] Counsel for Mr. Rhode concedes nothing, but he was intellectually honest in the sense of not spending any time attempting to argue that his client was not guilty of Counts 1 and 2. Making Child Pornography [ 13 ] Counts 3 and 4 of the indictment are identical.

They both read: 3) Between the 26 th day of August, A.D. 2011 and the 16 th day of April, A.D. 2013 at or near Saskatoon, Saskatchewan, did make child pornography, to wit: making a photography, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 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 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, contrary to

Section 163.1(2) of the Criminal Code . [ 14 ] The definition of child pornography at s. 163.1(1) of the Criminal Code , RSC 1985, c C-46 is: 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. [ 15 ] The Crown maintains that Mr. Rhode has created three distinct images of child pornography. The first one is a series of images capturing Mr.

Rhode sitting in a chair, naked, apparently masturbating with his laptop open and on it is a child performing oral sex on an adult male. [ laptop scenario ] [ 16 ] The second allegation respecting making child pornography is a photoshop creation. The accused had downloaded a photo of a young girl wearing a top and what I will describe as skimpy panties. He has a second photo of himself lying naked on his parents’ couch with his hand out in front of him.

He then photoshops or puts the two images together so that it creates an image of him naked on the couch albeit hiding his genitals between his legs and the little girl standing in front of him on the floor with his hand over her pelvic region [ photoshop image ]. [ 17 ] The third is a picture of Mr. Rhode naked and apparently masturbating while looking at the image of a little girl in a blue dress [ blue dress image ].

[ 18 ] It is worthwhile to note that there is a personal use exemption pertaining to pornography. It arises from a number of cases: R v Sharpe , 2001 SCC 2 , [2001] 1 SCR 45 ; R v Barabash , 2015 SCC 29 , [2015] 7 WWR 1 . Essentially, there is no crime if: 1) What is recorded is a legal sexual activity; 2) All parties have consented; 3) The image is maintained for personal use only. [ 19 ] The personal exemption exception is of no assistance to Mr. Rhode. His images involve children.

That is, ipso facto , illegal and they are unable to consent. [ 20 ] With respect to the laptop scenario , defence counsel argues that Mr. Rhode has not actually created anything. It is just an image of himself in the presence of an image that has already been created. He invokes a line of cases that say that simply downloading a child pornographic image that already exists is not in and of itself making child pornography simply because you have transferred it to a file. Respectfully, counsel’s characterization is too simple. [ 21 ] In the laptop scenario , Mr.

Rhode has added himself to the photo of the victimized child and is showing himself enjoying that abuse. He has created an image which to any reasonable viewer seeks to excite those drawn to child pornography. He has made a new image. In short, the laptop scenario is child pornography created by Mr. Rhode. [ 22 ] The next depiction is the photoshop image . Respecting that, defence counsel submits that as Mr. Rhode’s hand is in front of or resting against a little girl’s pelvic region, there is no exposure of her genital area or anus. There is no sexual activity per se.

Thus, he posits, no creation of child pornography. [ 23 ] Respectfully, I am not sure the

interpretation of s. 163.1(1) should be so linear. I am attracted to the analysis of Mocha J. in R v Meikle , [2011] OJ No 4151 (QL) (Ont Ct J) . At para. 5, Mocha J. opines: 5 The next area to be examined is what is meant under this provision by sexual purpose.

And again refer to the Sharpe case, same cite, has interpreted sexual purpose as meaning ‘reasonably perceived as intended to cause sexual stimulation to some viewers.’ … [ 24 ] In my view, any image created for the clear purpose of appealing to the prurient interest of a pedophile or involving the sexual degradation of a child is sufficient to bring such image within the definition of child pornography. [ 25 ] The court should not craft too narrow a definition of child pornography so as to limit the ability of police authorities to prosecute the evil that is child pornography. [ 26 ] It is clear that the photoshop image was created for a sexual purpose.

It was created for a sexual purpose by a pedophile who is interested in young girls to create sexual stimulation for Mr. Rhode. [ 27 ] The fact that the little girl’s pelvis or anus cannot be seen does not change the nature and quality of the image which is demonstrably child pornography. In sum, I conclude the photoshop image to be child pornography created by Mr. Rhode. [ 28 ] The third act of creating child pornography is the blue dress image . Counsel for Mr. Rhode makes the same argument as he does with the photoshop image . Not surprisingly, there is much the same answer. [ 29 ] The image of Mr.

Rhode masturbating while fixated on the image of a young girl in a blue dress is clearly designed for a sexual purpose and clearly for the purpose of providing stimulation to a pedophile by means of the sexual degradation of the little girl in the blue dress. Again, in sum, I conclude that the blue dress image is child pornography created by Mr. Rhode. Two Identical Counts [ 30 ] For reasons, which I am sure made sense at one time, the Crown in Counts 3 and 4 has set out two identical counts. Either count would have been sufficient to address all three pornographic images created by Mr. Rhode.

Accordingly, I find Mr. Rhode guilty of Count 3, for the reasons aforesaid and I impose a judicial stay on Count 4. Counts 5 and 6 [ 31 ] The physical elements of the offence of both Counts 5 and 6 are as follows: 1) That Mr. Rhode applied force to L.T. (force can be as little as a light touch); 2) That he intentionally applied the force; 3) That the force that was applied took place in circumstances of a sexual nature. [ 32 ] As previously noted, at the end of the Bible study group’s meeting, it was the normal protocol for L.T. to give everyone a hug. Mr.

Rhode was seated, his wife seated beside him, Lee was seated across and the other members of the study group were in the same room. [ 33 ] The Crown maintains that both offences were complete when Mr. Rhode put his left arm around L.T.’s waist and his other hand cupping her bum. It is agreed it was the usual type of hug (four or five seconds). The Crown urges the court to view

the fact scenario from the 10,000 foot level. To infer intention, it is important to remember that Mr. Rhode had immersed himself in child pornography and was arguably obsessed. [ 34 ] The Crown urges the court to look at Mr. Rhode, to look at what he does, and to consider what he is. It submits that the court should then extrapolate from Mr. Rhode’s ugly truth an intention to touch L.T. for a sexual purpose at the time of the hug. [ 35 ] When I pointed out to the Crown that it seems unlikely that Mr.

Rhode would decide to sexually touch L.T. bearing in mind who he was with, the Crown answers that given the level of Mr. Rhode’s obsession, the counter-intuitive circumstances did not deter him. [ 36 ] Shortly after Lee confronted Mr. Rhode about the incident, Mr. Rhode admitted that there was a touch on L.T.’s bum. There was an exchange of emails between Lee and Mr. Rhode and Mr. Rhode’s wife. [ 37 ] Mr. Rhode’s communication tends to be a stream of self-absorbed conscientiousness, but he did make the following statements: “I touched your daughter, inadvertently, inappropriately.

I’m sorry it happened.” In a second communication: I know it won’t matter, but as a final explanation, and because it might have been missed in our original conversation, I want to say one last thing regarding my specific actions. The reason I touched her like that, without realizing or thinking much about it, wasn’t because of my lack of control over my darker self. I had a conversation about this with Jen, whom you know, and the more we talked about it, the more I realized this really was the truth. I simply felt safe enough, in that place, to not have to be hypervigilant.

I no longer felt like I had to be extravagantly careful, make sure I put my hands in specific places and deliberately count how long I would be allowed to hug her and make it all superficial and controlled, because I really felt like I was part of her life, and yours. It wasn’t a dangerous lack of control, it was a good healthy expression of freedom and boundaries. [ 38 ] I am also cautioned in my view of the facts by Lee’s perception. As stated, he knew Mr. Rhode’s obsession with child pornography and he would have viewed the hug through the eye of a caring, concerned father.

That can taint perception. [ 39 ] It is also worth noting that when L.T. was interviewed by the police shortly after her father reported the incident, she did not recall Mr. Rhode touching her bum. [ 40 ] The onus on the Crown is a heavy one, proof beyond a reasonable doubt. It is not sufficient for me to look at the whole of the evidence, reflect upon the fact that Mr. Rhode is an obsessed pedophile and conclude that he likely or probably did touch L.T. for a sexual purpose. [ 41 ] The law requires that each and every element of the offence must be proved beyond a reasonable doubt.

I cannot, in good conscience, conclude in that four to five second hug, Shawn Michael Rhode intentionally touched L.T. in circumstances of a sexual nature. Accordingly, I find Shawn Michael Rhode not guilty of Counts 5 and 6. J. R.S. SMITH