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CRIMINAL CODE OFFENCES - Offences tending to corrupt morals - Child pornography

Thursday, July 02, 2020 @ 9:39 AM  

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Appeal by the Crown from the respondent’s acquittal on charges of making and distributing child pornography and child luring. The allegations related to text message communications between the respondent, 46, and JV, 14. Several of the messages were of a sexual nature about JV’s 14-year-old friend, NB. The respondent asked JV to send him photos of NB’s penis and repeatedly said he wanted to engage in sexual acts with NB. At trial, the respondent admitted to authoring and sending inappropriate text messages to JV but claimed he was not serious when he made his sexualized comments about NB or when he requested photos of NB’s penis. The trial judge accepted the respondent’s evidence that the messages were sent in jest. He acknowledged that s. 163.1(6) of the Criminal Code did not include a defence of joking but found that the Crown failed to prove the requisite elements of the child pornography and luring offences.

HELD: Appeal allowed. New trial ordered. The trial judge made legal errors in his interpretation of the child pornography and child luring provisions. Section 163.1 did not punish mere thoughts about sex with children but punished the creation of child pornography in tangible formats and the various ways in which they could be accessed, handled, shared and transmitted. These items did not gain or lose their child pornographic features based on the motive of the person who created or distributed them. The trial judge’s evaluation of the fault requirements in s. 163.1 was distorted by his application of the concept of undue risk in s. 163.1(6). The concept of undue risk had no role to play in determining whether written material amounted to child pornography. Instead of focusing on what the respondent intended, the trial judge should have focused on whether the messages themselves, when viewed objectively, advocated or encouraged sexual activity with persons under 18. The trial judge erred by employing a quantitative approach to the dominant characteristic framework in s. 163.1(1)(c). The trial judge should have focused on the characteristics of the impugned messages, rather than the entirety of the correspondence between the respondent and JV. The trial judge also erred in his approach to the mens rea for offences under s. 163.1 by confusing motive and intent. The trial judge failed to consider that s. 172.1 criminalized communication for the purpose of facilitating the commission of an offence, and he erred by holding that the Crown must prove that the luring was for a sexual purpose. Section 172.1 did not require proof of a sexual purpose. The Crown must only prove the accused engaged in the prohibited conduct with the specific intent of facilitating the commission of one of the designated offences. The respondent’s claim that he was joking was irrelevant in this context.

R. v. McSween, [2020] O.J. No. 2460, Ontario Court of Appeal, D. Watt, M.H. Tulloch and G.T. Trotter JJ.A., June 3, 2020. Digest No. TLD-June292020008