Docket: CACR2029 Her Majesty the Queen Appellant - v. -, 2012 SKCA 18

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 18 Date: 20120221 Between: Docket: CACR2029 Her Majesty the Queen Appellant - and - S.K.S. Respondent Restriction on Publication: An order has been made in this case pursuant to s. 486.4 of the Criminal Code prohibiting publication of any information that could disclose the identity of the complainant. Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Anthony Gerein for the Appellant Kim Stinson for the Respondent

Appeal: From: 2011 SKPC 102 Heard: February 21, 2012 Disposition: Allowed in part (orally) Written Reasons: February 27, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Herauf J.A. [ 1 ] S.K.S. (the “respondent”) was acquitted in Provincial Court of charges under s. 153 of the Criminal Code (sexual interference) and s. 163.1(3) of the Criminal Code (distribute child pornography). The Crown appealed the acquittals. The appeal relating to s. 153 of the Criminal Code was dismissed from the bench.

The appeal relating to s. 163.1(3) of the Criminal Code was allowed from the bench. [ 2 ] The respondent engaged in an on-line chat with someone he believed was 14, but who was, in fact, an Australian police officer. The respondent engaged in a sexually explicit conversation with the officer during which time he said he had had sexual intercourse with his stepdaughter since she was 14. He also sent pornographic pictures to the officer with the faces removed from the pictures.

The respondent indicated in the internet conversation, which accompanied the pictures, that the pictures were portrayals of himself and his 16 year-old stepdaughter.

Following his arrest, the respondent gave a sworn statement indicating he had had intercourse with his stepdaughter when she was between 17 and 18; however, at the trial, the stepdaughter, who was called not as a Crown witness, but as a defence witness, testified that she had initiated all sexual conduct, that it had occurred after she had turned 18, and that she had consented to the pornographic pictures being taken of her, which also occurred only after she was 18.

She also testified that she had had no contact with the respondent since the date he had been charged with the offences. [ 3 ] At the conclusion of the trial on April 27, 2011, the trial judge set the matter to June 24, 2011 for his decision. A few days prior to June 24, 2011, the Crown received a statement from the respondent’s wife (who was also the mother of the victim) that, contrary to the stepdaughter’s testimony, the respondent and the stepdaughter had had contact since the respondent was charged.

In fact, the statement alleged that the respondent and stepdaughter had discussed her evidence to be given at the upcoming trial. [ 4 ] On June 24, 2011, the Crown applied to call the respondent’s wife to give rebuttal evidence. The respondent’s wife had been present throughout the trial. The trial judge dismissed the application on the premise that “the prejudicial value outweighs the probative value.” The trial judge, however, couched his reasons as if the Crown had applied to re-open its case.

The trial judge then proceeded to acquit the respondent on the strength of the victim’s claim that the sexual relationship between her and the respondent commenced after she had turned 18 years of age. [ 5 ] With respect to the charge of “distribute child pornography”, the trial judge acquitted the respondent because he could not be sure of the age of the female shown in the pictures.

The trial judge concluded that he could not consider the respondent’s description of the girl as being 16 in deciding whether she had been depicted as being under 18. [ 6 ] As indicated, the Court dismissed the Crown appeal in relation to the “sexual interference” charge. Crown appeals from acquittals are governed by the case law that has developed in relation to s. 686(4) of the Criminal Code .

In order to obtain a new trial, we must be satisfied that any error of the trial judge “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.” See: R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609 at para 14 . Assuming the trial judge made an error of law, we are not satisfied that it was a material error or that, if it had not been made, the trial judge would have reached a different result.

In the circumstances of this case, including the source of the evidence and the lateness of the application, we are not satisfied that the trial judge erred in the exercise of his discretion or his conclusion that prejudice to the respondent trumped the probative value of the proposed evidence. Accordingly, the appeal was dismissed as it relates to the “sexual interference” charge. [ 7 ] With respect to the “distribute child pornography” charge, we find that the trial judge did commit an error of law in his application

of s. 163.1(1) of the Criminal Code by giving the

section a restricted meaning, which resulted in his failure to consider all of the evidence, including the typed internet message exchange where the respondent advised the pictures were of himself and his 16 year-old stepdaughter. See: R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45. In the result, the appeal was allowed, the acquittal was set aside and, at the request of the Crown, a new trial was ordered on the “distribute child pornography” charge.