Court of Appeal for Saskatchewan Docket: CACR3442 Citation: R v Fisher , 2022 SKCA 78 Date: 2022-07-08 Between: Gabriel Michael Fisher Appellant And Her Majesty the Queen Respondent Before: Schwann, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Barrington-Foote On appeal from: 2020 SKQB 197 and CRM 1 of 2019 (QB), Regina Appeal heard: April 19, 2022 Counsel: Andrew Hitchcock for the Appellant James Fyfe for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Gabriel Fisher recorded voicemail messages on a chat service and accessed messages created by other persons. The messages described sexual activity with children. As a result, he was charged with child pornography offences and breaching the conditions of an order of prohibition that related to such conduct. Mr. Fisher asserts that the provisions of the Criminal Code under which he was convicted, s. 163.1(2) , s. 163.1(4) and s. 163.1(4.1) , violate his s. 2(

b) and s. 7 Charter rights. He submits that this Court should create an exception for his conduct in much the same manner as the Supreme Court found two narrow exceptions to exist in R v Sharpe , 2001 SCC 2 , [2001] 1 SCR 45 [ Sharpe ]. Mr. Fisher also asserts that the facts, as found by the trial judge, did not support a conviction for breaching the order of prohibition to which he was subject. [ 2 ] For the reasons that follow, I conclude that Sharpe should not be expanded to include a third exception.

The impugned sections of the Criminal Code are justified under s. 1 of the Charter in the circumstances of this matter. The convictions on the first three counts of the indictment – possessing, accessing and making child pornography – must stand. However, the trial judge erred in convicting Mr. Fisher of breaching the order of prohibition. The appeal must be allowed in relation to that conviction. II. BACKGROUND [ 3 ] Mr. Fisher was residing at Oskana Centre, a federal community correctional centre, pursuant to the terms of a long-term supervision order at the time in question.

The facility has a telephone system that allows residents to make outgoing calls. On November 21, 2017, monitoring software was installed on the Oskana Centre telephone system, which permitted staff to access the log of calls that had been made from the phones that were accessible to the residents. In reviewing that information, staff discovered that Mr. Fisher had placed an inordinate number of telephone calls – later determined by the police to be 346 instances – to the same telephone number over a period of 46 days from November 21, 2017, to January 5, 2018.

That number belonged to a chat line service named Interactive Male. [ 4 ] Interactive Male is a chat service that required its members to be adults, pay a fee and access the system using their own unique identification number and password. Once a person joins Interactive Male, they can leave an introductory greeting, indicating their name and interests. The system gives users three options: live chatting with other users, leaving voicemail messages for other users, and accessing voicemail messages left for them by other users. The voicemail messages are directed to one other specific member at a time.

These individuals are generally strangers to each other. The messages can be listened to multiple times by different individuals, but are deleted if a member’s account is dormant for three months. [ 5 ] When Mr. Fisher’s reintegration worker and parole officer confronted him at Oskana Centre about the use of this service, he admitted it was a chat line that he had been calling. He was cooperative, answered their questions and stated that the calls were sexual in nature. In his discussions, Mr. Fisher admitted that he participated in the chat room by leaving and receiving messages because it aroused him.

He stated that he masturbated at least once per week immediately after using the Interactive Male service. [ 6 ] Mr. Fisher provided his user number and password, signed into Interactive Male when the corrections officials requested him to do so, and explained to them how the system worked. There is no evidence that Mr. Fisher shared his password with anyone else. Mr. Fisher never used the live chat option on Interactive Male. There is no evidence that he ever copied any of the messages onto another medium. The corrections officials asked Mr.

Fisher if they could listen to the messages on his account and he agreed that they could do so, but he wanted to leave the room while they did. They accessed Mr. Fisher’s account and listened to 46 voicemail messages, some of which contained graphic descriptions of sexual activity with children. They recorded the messages as they listened, which totalled over two hours.

[ 7 ] The corrections officials notified the Regina Police Service [RPS] of the results of their internal investigation. An investigator from the RPS later obtained the messages and Mr. Fisher’s audio greeting directly from Interactive Male pursuant to a production order. Some of the messages were created by Mr. Fisher and others were messages that were left for him by other members. The messages left for Mr. Fisher that were of particular concern to the RPS originated from three adult males in the United States. [ 8 ] At the time Mr.

Fisher was using the Interactive Male service, he was bound by the terms of an order of prohibition that was imposed in a previous conviction from February 17, 2016. [ 9 ] Mr. Fisher was charged with making, possessing and accessing child pornography contrary to s. 163.1(2) , s. 163.1(4) and s. 163.1(4.1) of the Criminal Code . He was also charged under s. 161(4) with breaching the order of prohibition by using the Interactive Male service. III. EXISTING EXCEPTIONS UNDER SHARPE [ 10 ] The arguments raised by the parties hinge on the decision in Sharpe . As such, I believe that it is helpful to set out a brief

summary of that decision to provide the appropriate context for the remainder of this judgment. [ 11 ] In Sharpe , the Supreme Court considered the constitutionality of a portion of a previous provision of the Criminal Code that dealt with child pornography. The provisions in question were as follows: Definition of “child pornography” 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; or (

b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act. … Possession of child pornography

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence … . [ 12 ] Mr. Sharpe had asserted that the outright prohibition on the possession of child pornography unjustifiably violated the guarantee of his right to free expression under s. 2(

b) of the Charter . He also raised s. 7 of the Charter , but the majority of the Supreme Court determined that this issue was subsumed in its s. 2(

b) assessment because the “argument wholly replicate[d] the overbreadth concerns” covered by its analysis (at para 18). [ 13 ] In conducting its assessment, the majority compared the values underlying the importance of the guarantee of free expression, notably self-fulfillment, against society’s interest in protecting children from the harm created through the possession of child pornography. In summarizing this point, McLachlin C.J.C., speaking for the majority, said this: “These then are the values at stake in this appeal.

On the one hand stands the right of free expression – a right fundamental to the liberty of each Canadian and our democratic society. On the other stands the conviction that the possession of child pornography must be forbidden to prevent harm to children” (at para 29). [ 14 ] Chief Justice McLachlin found that the sections of the Criminal Code that criminalized possession of child pornography violated s. 2(

b) and s. 7 of the Charter (at paras 24–27). That point was not particularly contentious and had been conceded by the Crown. The main issue was whether the infringement could be justified under s. 1 of the Charter . In finding that the limit on free expression was justified under s. 1, McLachlin C.J.C. set out two narrow exceptions where it could not be. These findings are summarized in the following excerpt: [110] I conclude that in broad impact and general application, the limits s. 163.1(4) imposes on free expression are justified by the protection the law affords children from exploitation and abuse.

I cannot, however, arrive at the same conclusion in regard to the two problematic categories of materials described above. The legislation prohibits a person from articulating thoughts in writing or visual images, even if the result is intended only for his or her own eyes. It further prohibits a teenager from possessing, again exclusively for personal use, sexually explicit photographs or videotapes of him- or herself alone or engaged with a partner in lawful sexual activity.

The inclusion of these peripheral materials in the law’s prohibition trenches heavily on freedom of expression while adding little to the protection the law provides children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(

b) contemplated by the legislation is not demonstrably justifiable under s. 1. [ 15 ] The Supreme Court next considered the remedies available to it and concluded that reading in two exceptions to the law was the most appropriate course of action (emphasis in original): [114] … in my view the appropriate remedy in this case is to read into the law an exclusion of the problematic applications of s. 163.1 … I

conclude that in the circumstances of the case reading in an exclusion is the appropriate remedy. [115] To assess the appropriateness of reading in as a remedy, we must identify a distinct provision that can be read into the existing legislation to preserve its constitutional balance. In this case, s. 163.1 might be read as incorporating an exception for the possession of: 1. Self-created expressive material : i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and 2.

Private recordings of lawful sexual activity : i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. [ 16 ] The Court concluded these two exceptions and the statutory defences and limitations already contained in the Criminal Code apply to the offences of possession of child pornography under s. 163.1(4) and making child pornography under s. 163.1(2) . IV. TRIAL DECISION A. Charter application [ 17 ] In the Court of Queen’s Bench, Mr.

Fisher asserted that his conduct in recording and listening to messages on Interactive Male fell within the existing personal use exceptions found in Sharpe . The trial judge rejected that submission and that aspect of the trial judge’s decision is not challenged on appeal. Mr. Fisher also applied for an order, pursuant to s. 52 of the Constitution Act, 1982 , and s. 24(1) of the Charter , extending the personal use exceptions found in Sharpe . He argued that a third exception should be recognized that would cover the nature and scope of his conduct in this matter.

It is that latter portion of his application that is relevant to this appeal. [ 18 ] The Crown called two witnesses at trial: the reintegration worker from the Oskana Centre and a police officer qualified to provide expert evidence with regard to child pornography. Mr. Fisher did not call any evidence. The trial judge reserved her decision on the Charter application. In her written judgment, she dismissed Mr.

Fisher’s Charter application: R v Fisher , 2020 SKQB 197 , 65 CR (7th) 475. [ 19 ] After setting out the issues and the relatively uncontested facts, the trial judge analyzed the existing Sharpe exceptions and determined that Mr. Fisher could not fit himself into any of them. She then turned to an examination of whether the criminalization of the conduct represented an infringement of his s. 2(

b) and s. 7 Charter rights. She noted that the Supreme Court in Sharpe had found the sections in issue did infringe on s. 2(

b) rights and moved on to determine whether the circumstances of the matter before her justified creating a third exception. She found that it did not, reasoning as follows: [27] The Supreme Court has thoroughly canvassed the tension which exists between the right to free expression and the possession and creation of child pornography. While in this case the Attorney General argues that it does not accept that possessing, creating and accessing the Recorded Messages violates s. 2(

b) of the Charter , I decline to consider that issue here. It is sufficient for the purposes of this case that the Supreme Court has found that laws prohibiting the possession of child pornography do infringe on an accused’s rights pursuant to s. 2(

b) of the Charter , but that this infringement is saved by s. 1 of the Charter , except in the two specific circumstances of the personal use exceptions. Where the interests and rights of children are engaged, the accused’s right to free expression must give way. [28] Possessing child pornography that is created by another, as well as creating child pornography for the purpose of sharing it, poses a risk of harm to children: Sharpe at paras 85, 86 and 89 . The goal of preventing such harm by criminalizing the possession and creation of child pornography is pressing and substantial.

Explicit audio recordings which depict or describe sexual activity with children may promote cognitive distortions, fuel fantasies that incite offenders, and enable grooming of victims: Sharpe at paras 87–92 . Materials, including audio recordings, that advocate or counsel sexual offences with children pose many of the same risks. Thus, the law criminalizing child pornography benefits society by ( Sharpe at para 103 ): … reducing the possibility of cognitive distortions, the use of pornography in grooming victims, and the abuse of children in the manufacture and continuing existence of this material.

Explicit sexual photographs of children, videotapes of pre-pubescent children, and written works advocating sexual offences with children – all these and more pose a reasoned risk of harm to children. Thus … in its main impact, s. 163.1(4) is proportionate and constitutional. [29] Assessing the reasoned apprehension of harm to children is key to determining the constitutionality of laws that criminalize the possession, creation or accessing of child pornography. The risks generated by child pornography are not diminished by the nature or medium of its production.

Rather, a reasoned apprehension of harm to children exists when child pornography is shared. [30] The fact that the Recorded Messages were recorded changes them from a private conversation between two individuals to something inherently more dangerous. Messages that are recorded can be repeatedly reviewed and can be disseminated to others. The Recorded Messages were recorded, saved and left by one individual for the very purpose of having another individual access and review them. As a result, the Recorded Messages were shared or disseminated beyond the single user.

It is the act of sharing child pornography that promotes the cognitive distortion, referred to in Sharpe , that sex with children is acceptable. It is the act of sharing that “fuels” the fantasies of offenders. In turn, this increases the risk of harm to children. The risk of harm exists because the pornographic material is disseminated beyond a single user: Sharpe at para 105 .

As the Supreme Court noted in Sharpe at para 128 (8): Neither [personal use] exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163.1. [31] The Supreme Court did not introduce the concept of “degrees of privacy” into its Charter analysis in Sharpe . Mr. Fisher argues that he had an expectation of privacy in the messages he left and accessed, particularly because his account was password protected.

However, an expectation of privacy does not apply to the personal use exception because the exception is based on an assessment of risk of harm to

children, not on an assessment of the accused’s privacy. The Supreme Court has determined that a risk of harm to children arises when child pornography is shared beyond the single individual who created it. Allowing it to be shared between two people is a risk that the court found to be unacceptable. Criminalizing such conduct is a justified infringement on an individual’s right to free expression. Any sharing creates a risk of harm to children at a level which Canadian society does not tolerate. B. Conviction decision [ 20 ] After delivering her decision on Mr.

Fisher’s Charter application, and confirming that the parties had no further submissions, the trial judge rendered an oral decision in which she convicted Mr. Fisher on all four counts on the indictment. Mr. Fisher does not allege further error in the conviction decision, except in relation to the conviction for the breach of the order of prohibition. Regarding the breach of the prohibition order, the trial judge determined as follows: With respect to the last count of the breach of the probation order [ sic ], I find that Mr.

Fisher is guilty of using a telecommunication device to access or participate in a chat room or other form of social media to discuss/promote child exploitation, child pornography, sexualized images of children, or other child exploitation material. According to Constable Froh, Interactive Male was not a digital network; however, it was clearly a form of a chat room accessed by using a telephone where users discussed or promoted sexualized depictions of children or child pornography.

So I find that the finding of a breach does not turn on whether Interactive Male was a digital network, rather, the evidence supports that it was a message system which could be defined as a chat room which Mr. Fisher used a phone to access, and this was prohibited by the probation order. So the terms of the order were sufficiently broad and far-reaching to capture a message system accessed by telephone. [ 21 ] In addition to ancillary orders, Mr. Fisher was sentenced to 90 months of incarceration less 31 months of pre-sentence credit on each count of the four-count indictment, to be served concurrently.

This was the sentence both parties recommended to the trial judge. V. ISSUES [ 22 ] The issues in this matter are as follows: (

a) Did the trial judge err in finding that an exception does not exist for Mr. Fisher’s conduct under s. 163.1(2) , s. 163.1(4) and s. 163.1(4.1) of the Criminal Code , as a result of her analysis of s. 2(b), s. 7 and s. 1 of the Charter ? (

b) Did the trial judge err in convicting Mr. Fisher for breaching the order of prohibition because the facts do not support her finding that a breach of a term of the order occurred? VI. ANALYSIS A. Relevant statutory provisions [ 23 ] The following provisions of the Criminal Code are relevant: Offence 161(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than four years … . … Definition of child pornography 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; … (

d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. …

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or … Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year … . [ 24 ] The current version of the Criminal Code provisions relating to child pornography were put in place in the immediate aftermath of Sharpe .

A comprehensive discussion of the legislative changes is not necessary for the purposes of this judgment. [ 25 ] The following provisions of the Charter are relevant: Rights and freedoms in Canada 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. … Fundamental freedoms 2 Everyone has the following fundamental freedoms: … (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication … . … Life, liberty and security of person 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. B. Charter challenge [ 26 ] On appeal, Mr. Fisher does not contest that some of the recorded messages made by him on Interactive Male, and some of the messages that he accessed from three other members, contained recorded audio material that met the

definitions of child pornography under s. 163.1(1) (

b) and s. 163.1(1) (

d) of the Criminal Code . However, he argues that the criminalization of the conduct captured by these

definitions, read in conjunction with s. 163.1(2) , s. 163.1(4) and s. 163.1(4.1) of the Criminal Code , violates s. 2(

b) and s. 7 of the Charter . Mr. Fisher asserts that this infringement is not justified by s. 1 of the Charter . He submits that the government has effectively censored a private conversation between two consenting adults, where there is no evidence that either participant intended to further disseminate their words. He says what took place is illegal only because it occurred over a time-delayed medium as opposed to a real time, in-person discussion. Mr.

Fisher wants this Court to recognize a third exception, supplementing the two found to exist in Sharpe , that permits such exchanges without attracting criminal consequences. [ 27 ] Mr. Fisher would not have committed a criminal offence, under the child pornography provisions, if he had engaged in real time, in-person conversations with a succession of adult strangers where he said the exact same things he recorded on Interactive Male and listened to his in-person companion say the identical things back to him that were contained in the other parties’ voicemail messages.

That type of conduct is not prohibited by the Criminal Code . He argues that the voicemail system is merely a modern way of having these very same conversations, and, absent an intention to share the recordings beyond the targeted recipient, the exchanges should not be criminalized. [ 28 ] The Crown concedes that the impugned provisions of the Criminal Code infringe Mr. Fisher’s freedom of expression as guaranteed by s. 2(

b) of the Charter , but submits that the limitation imposed by the sections are justified under s. 1. It argues that the comprehensive analysis in Sharpe , where Charter rights were examined in the context of the harm presented to children from child pornography, does not support the creation of a third exception in the circumstances described by Mr. Fisher. It submits that leaving recordings for other persons, and accessing recordings from other persons, is conduct that creates the same type of harm that was found to be the basis for justifying the infringement in Sharpe . [ 29 ] In reviewing a trial judge’s determination of whether an infringement of s. 2(

b) of the Charter is justified under s. 1, an appellate court applies the standard of review of correctness: R v Kossick , 2018 SKCA 55 at para 19 , 365 CCC (3d) 186. The underlying facts are subject to review on a standard of palpable and overriding error: R v Lichtenwald , 2020 SKCA 70 at para 22 , 388 CCC (3d) 377. [ 30 ] In the same manner and for the same reasons that were set out in paragraph 18 of Sharpe , it is my view that the analysis of the s. 7 Charter issue is subsumed in the analysis of s. 2(

b) and s. 1.

[31] I find that the circumstances of the matter at hand do not represent a situation where a third exception should be recognized. Ido not accept that advances in communication technology since the decision in Sharpe necessitates broadening the existing exceptions soas to extend Charter protection for recordings of the nature contained in the voicemail messages. The trial judge did not err in determiningthat the infringement was justified under s. 1 of the Charter. [32] The Crown has acknowledged that the impugned sections of the Criminal Code infringe on Mr. Fisher’s rights as guaranteedunder s. 2(

b) of the Charter. Given the reasoning found at paragraphs 25–27 of Sharpe, this is a sensible concession with which I agree.The issue is whether the Crown has demonstrated that s. 1 of the Charter can justify this infringement. When conducting such anassessment, a court will apply the test set out in R v Oakes, (SCC), [1986] 1 SCR 103, as refined in Dagenais v CanadianBroadcasting Corp., (SCC), [1994] 3 SCR 835, and Thomson Newspapers Co. v Canada (Attorney General), (SCC), [1998] 1 SCR 877, as follows: (

a) Is the law’s objective pressing and substantial? (

b) Are the means chosen in the legislation proportionate in terms of being rationally connected to the objective, minimallyimpairing of the right, and proportionate in terms of the law’s effects? [33] In my view, it is beyond argument that the child pornography provisions in the Criminal Code have the pressing and substantialobjective of protecting children from the harm created by the prohibited conduct. This is as true for the current provisions, which nowinclude a definition that covers audio recordings (s. 163.1(d)), as it was for the previous enactments: Sharpe at para 82.

I see no reason toanalyze this aspect further. [34] The proportionality of the sections requires a more detailed examination. I begin by observing that, while the Supreme Courthas heard child pornography cases since Sharpe, it has not expanded or supplemented the two exceptions that it created in 2001. In R vKatigbak, 2011 SCC 48, [2011] 3 SCR 326 [Katigbak], the Supreme Court contemplated the scope and nature of the child pornographydefences before and after Parliament amended the relevant provisions.

Although Katigbak involved the artistic and scientific meritdefences now outlined in s. 163.1(6) of the Criminal Code, and did not directly address the Sharpe exceptions, the following generalcomment by McLachlin C.J.C. and Charron J. has some resonance in the matter at hand: [38] … When interpreting the defences for child pornography offences, courts must strike a difficult balance between the importance offreedom of expression and the need to protect children from abuse. Giving primacy to either of these objectives would defeat Parliament’sobjective.

On the one hand, interpreting the defences too narrowly would result in the punishment of expressive conduct that poses aminimal risk of harm to young persons. By enacting these defences, Parliament recognized that “the law could unduly impinge on some ofthe values protected by the guarantee of free expression, like artistic creativity, education, medical research, or other public purposes, andsought to provide protection for activities furthering these values” (Sharpe, at para. 60). On the other hand, interpreting the statutorydefences too broadly would undermine the laws against child pornography.

The defences must not be read in a way that defeatsParliament’s objectives of criminalizing child pornography and protecting children from abuse. [35] In R v Barabash, 2015 SCC 29, [2015] 2 SCR 522 [Barabash], the Supreme Court considered the Sharpe exceptions andclarified the lawfulness component that is required for the second exception to apply. The decision in Barabash examined alleged childpornography that was created in the context of an exploitative sexual relationship that would otherwise be prohibited pursuant to s. 153 ofthe Criminal Code.

The Supreme Court held that if the Crown proved beyond a reasonable doubt that the sexual activity occurred in thecourse of an exploitative relationship, then the private use exception would not be available. This is so because such sexual activity wouldnot be lawful, even if it were consensual. The exploitation inquiry is not a separate step in the Sharpe analysis for the private use exceptionand is subsumed in the lawfulness inquiry.

Importantly, this decision did not enlarge the Sharpe exceptions and reiterated the threenecessary elements for the private use exception (at para 18): (a) “the recording must depict lawful sexual activity”; (b) “the persons depicted must consent to the recording”; and (c) “the recording must be held for private use”. [36] No other court in Canada has expanded the exceptions listed in Sharpe.

Instead, courts have tended to narrowly apply the twoexisting exceptions: see, for example, R v T.W., 2014 ONSC 4532, and R v L.W. (2006), (ON CA), 208 OAC 42 (CA). [37] Turning more specifically to the proportionality analysis under s. 1 of the Charter, I find that the sections of the Criminal Codeprohibiting the dissemination of audio recordings are rationally connected to their objective. [38] As a first point, I note that there was no evidence that any of the children discussed in the audio recordings actually existed.However, the Supreme Court has already determined that visual depictions of sexual activity involving imaginary children are caught bythe definition of child pornography in s. 163.1(1)(a)(

i) and s. 163.1(1)(

b) and can be harmful to children even if the children who aredepicted are imaginary: Sharpe at para 38 (majority) and at para 167 (concurring minority). I can see no principled reason why this wouldnot be equally true of explicit audio descriptions of sexual activity with children who have not been proven to exist. [39] More pertinently, as set out by McLachlin C.J.C. in Sharpe (at paras 87–92), the prohibition on the possession of childpornography addresses the risk of harm to children created through the following: (

a) cognitive distortions that normalize sex with children among the consumers of such material; (

b) the fuelling of fantasies that may incite sexual abuse of children; (

c) its role in the grooming of potential victims; and (

d) the actual abuse of real children who are used to create the material.

These four harms are also present with regard to the offences of accessing and making child pornography. Despite Mr. Fisher’s assertions to the contrary, these same risks were created by his audio recordings, although, perhaps, to a lesser degree than some other forms of child pornography. The prohibition of the conduct in question, as set out in s. 163.1 of the Criminal Code , seeks to prevent the recognized risk of harm to children created through the production, possession and dissemination of such audio recordings.

It is, therefore, rationally connected to Parliament’s objective of lessening this risk of harm. [ 40 ] In further considering whether the impugned sections are proportionate, it is instructive to more closely examine the two exceptions that were set out in Sharpe under s. 1 of the Charter . The first exception exempts written or visual material that is entirely self- created and not shared with any other person. While such material still engenders potential harm by promoting cognitive distortion and fueling fantasies, the Supreme Court determined that the expressive value outweighs the harm.

In my view, the requirement that such material be self-created and remain completely private weighed heavily in the balancing that resulted in this exception. [ 41 ] The second exception is aimed at visual recordings of young persons engaging in lawful sexual activity, possession of which, by virtue of their ages, would otherwise constitute an offence. Again, the exception applies only if the recording is purely held for private use. Virtually none of the types of harm set out in Sharpe are implicated in this second exception. The risk is low and the expressive value is high.

The same cannot be said in relation to Mr. Fisher’s use of Interactive Male. The second exception requires the sexual activity being described or depicted to be lawful, and, even if all of the participants in the creation of the material consent, to be strictly private: Barabash . The activity described in the Interactive Male recordings was not a description of lawful sexual conduct and the recordings were shared. [ 42 ] With regard to the expressive value of Mr.

Fisher’s recordings, I note that he has not identified anything that approaches that which was described by McLachlin C.J.C. when she created the two exceptions. He submits that the recordings consist of co-created works of imagination. Mr. Fisher says that they are attempts to convey meaning through words in relation to fantasies and memories. He argues that his conduct signifies the freedom to develop thought and derive pleasure from its expression without state interference.

In contrast, the expressive values discussed in Sharpe encompassed self-actualization and sexual exploration in the context of loving and respectful teenage relationships. Mr. Fisher has not referred to anything comparable. In my view, the recorded descriptions of illegal sexual acts with children in this matter do not have any expressive value beyond that contained in the expression of an abhorrent idea.

It exists, but not in an enhanced manner such as that which was found by McLachlin C.J.C. in crafting the two exceptions in Sharpe . [ 43 ] Further, the necessary precondition for both Sharpe exceptions is that the created or recorded material must be strictly limited to private use. This is made abundantly clear in Sharpe in the following excerpt from the

summary that appears at the end of the majority judgment: “Neither exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163.1 ” (at para 128(8)). [ 44 ] Here, the recordings on Interactive Male were made by Mr. Fisher and the other members for the very purpose of sharing. The type of exception created in Sharpe cannot apply. [ 45 ] Neither do I agree with Mr.

Fisher that the Interactive Male recordings are the equivalent of private, in-person, real time conversations between two consenting, like-minded adults who are merely expressing their thoughts. The recordings were not merely a tool used to facilitate such private discussions. Here, Mr. Fisher created audio recordings that were not meant to remain private. Once recorded to voicemail, he lost control over whether they could be listened to repeatedly by anyone who was granted access by the other member.

The messages could also be easily duplicated by the other member, as was done by the corrections officials, and further disseminated. After the material was recorded, and out of Mr. Fisher’s exclusive private control, the risk of all four types of harm described in Sharpe existed. The same thing can be said for the recordings left for Mr. Fisher by other users and accessed by him. This is very different from a private conversation. [ 46 ] Mr. Fisher equates the exchange of voicemail messages to a text conversation or a discussion using a messaging service on a social media platform.

He asserts that this is how modern dialogues take place and that they are the contemporary legal equivalent of an in-person, real time, verbal conversation.

While I am not specifically deciding whether those other types of exchanges should not be criminalized, because those are not the facts of this case, I note that similar arguments have been rejected in R c Gagné , 2011 QCCA 2157 at paras 19–22 and 26 , 90 CR (6th) 270; R v A.R ., 2017 ONCJ 849 at paras 22–25 ; and R v McSween , 2020 ONCA 343 at paras 43–55 , 388 CCC (3d) 153 [ McSween ]. [ 47 ] I find that the means chosen by Parliament to advance its objective of protecting children from the harm created by persons who engage in the possession, making and accessing of child pornography, including the prohibition on audio recordings of the nature implicated in this matter, are proportionate.

Taking into account the severity of the harm, and the existing statutory and common law exceptions and defences, the law, as it stands, is minimally impairing of Mr. Fisher’s s. 2(

b) rights. It provides a reasonable solution to a pressing and substantial problem. As Mr. Fisher submitted, it is not illegal to have even the most deplorable and unsavory of thoughts and it is also not illegal to voice those thoughts to another person. However, once those thoughts are created in “tangible formats” ( McSween at para 43 ), the dissemination to other persons of that material properly engages the Criminal Code provisions relating to child pornography. Mr.

Fisher remains free to have thoughts about illegal sexual activities, and to record them for completely private use, but the moment those recordings are shared, the risk of harm becomes unacceptable when balanced against his Charter rights. [ 48 ] In conducting this assessment of the weight to be assigned to the countervailing interests, I find that the requirement that audio recordings of the nature in question must be kept strictly private, and not shared in the manner in which they were in this matter, is proportionate in terms of the law’s effects.

The benefits achieved by the impugned sections of the Criminal Code , which criminalize the possession, accessing and making of audio recordings, which meet the definition of child pornography, outweigh the infringement of Charter rights. The balance to be achieved between the two competing interests does not require the creation of an exception as propounded by Mr. Fisher. [ 49 ] The infringement of Mr. Fisher’s Charter rights is justified by s. 1. The trial judge did not err in her finding on this point. This ground of appeal cannot be given effect.

C. Conviction for breaching the order of prohibition [ 50 ] Mr. Fisher’s assertions regarding his conviction for breaching the order of prohibition, contrary to s. 161(4) of the Criminal Code , turn on the narrow issue of whether the Crown proved that he accessed a digital network . He argues that the order of prohibition forbade him from using a telephone to access a digital network to access child pornography, but the uncontroverted evidence established that Interactive Male was not a digital network.

The Crown contends that the Interactive Male system contains the hallmarks of a digital system, such as a password requirement, menu options and a recording or save function for messages. It argues that it is unclear how it could be anything but a digital network. [ 51 ] The relevant term of the February 17, 2016, order of prohibition is as follows: c. You are not to use any computer, telecommunications device or similar device to access the Internet or other digital network in order to: i. Access child pornography; ii.

Access or participate in chat rooms, bulletin boards, websites or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material … . [ 52 ] Count number four in the indictment charged Mr. Fisher as follows: 4. THAT HE, the said Gabriel Michael Fisher between the 25th day of November, A.D. 2017 and the 5th day of January 2018, A.D., at or near Regina, Saskatchewan, did being a person bound by an order of prohibition made on February 17, 2016 at Regina, Saskatchewan by the Honourable Judge J.

Kalmakoff prohibiting him from not [ sic ] using any computer, telecommunication device or similar device, to access the internet or other digital network in order to access child pornography; access or participate in chat rooms, bulletin boards, websites, or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material did fail to comply with such order by accessing child pornography contrary to Section 161(4) of the Criminal Code . [ 53 ] The agreed statement of facts filed at the trial established the following facts that are relevant to the analysis of this ground of appeal: 6.

Details pertaining to the purpose and function of the telephone service known as “Interactive Male” a. Interactive Male is a telephone service, specifically for males over the Age of 18; … c. Users may use a live chat service or a message based service, whereby they can leave messages for each other. d.

Users may save messages that have been received by them from another user. [ 54 ] During his cross-examination, the police officer who had been qualified as an expert in relation to child pornography stated the following regarding the nature of the Interactive Male service: Q And, as far as we know, and as a result of your investigation, when you -- you spoke to this company that runs Interactive Male, right? A That is correct. Q There was a variety of emails with someone named Scott Eagleson (phonetic) who was helping you get through, basically, what they sent you, which is a bunch of audio files?

A That is correct. … Q Now, you had asked, in your email -- I’m just going to find it here -- Mr. Eagleson his opinion on whether their service would constitute a digital network, remember that? A Yes. Q And it appears that this is just a phone system, right? A Yes, a phone system. Yes. [ 55 ] In her oral decision on conviction, the trial judge noted the police officer’s evidence that indicated Interactive Male was not a digital network; nonetheless, she determined that the breach did not turn on whether it was such a network. She found that the fact that Interactive Male was a chat room, which Mr.

Fisher accessed using a telephone in order to access child pornography, was sufficient to support a breach of the order of prohibition. This

interpretation would be correct, if the order of prohibition required him to abstain from using a telephone to access child pornography or related chat rooms. But that is not how the order reads. It unambiguously forbade Mr. Fisher from using a telecommunications device to access the internet or a digital network in order to access child pornography or such chat rooms. While it seems unlikely that a modern system with the features contained in Interactive Male is not based on digital technology, the uncontroverted evidence at trial was that it was not.

The trial judge appears to have accepted that it was not a digital network. Based on the evidence that was accepted, Mr. Fisher did not breach this specific term, because he did not access the internet or a digital network. As such, the conviction on count 4 of the indictment must be set aside and an acquittal entered. [ 56 ] As Mr. Fisher’s sentence on the conviction for a contravention of s. 161(4) of the Criminal Code is being served concurrently with the convictions on the other counts in the indictment, there is no basis to adjust his sentence on those other convictions as a result of this acquittal. VII.

CONCLUSION

[ 57 ] The appeal is allowed only to the extent of substituting an acquittal for the conviction under s. 161(4) of the Criminal Code . “Tholl J.A.” Tholl J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.