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CRIMINAL CODE OFFENCES - Sexual offences, public morals, disorderly conduct and nuisances - Offences tending to corrupt morals - Child pornography

Thursday, December 15, 2016 @ 7:00 PM  


Appeal by the accused, MB, from her conviction for possession of child pornography, distribution of child pornography, and uttering threats. The accused and the complainant were young persons. The accused had a relationship with the complainant’s former boyfriend. They subsequently exchanged text messages that turned hostile after the complainant indicated her unresolved feelings for the accused’s boyfriend. The accused messaged the complainant to state she would be assaulted if she attended her school, leading to the charge of uttering threats. During the ongoing dialogue, the accused’s boyfriend showed her sexual images the complainant had shared with him during their relationship. The accused used her phone to take photographs of the images and sent the photos to the complainant and another individual using Facebook’s direct messaging function, thereby leading to the child pornography charges. Prior to trial, the accused sought to challenge the constitutionality of the child pornography possession and distribution provisions, ss. 163.1(3) and 163.1(4) of the Criminal Code. The accused submitted the impugned provisions breached ss. 7 and 15 of the Charter, as they captured conduct unrelated to the objective of reducing the risk of harm to children, and criminalized conduct that would otherwise be lawful involving adults. The accused sought reconsideration of the Supreme Court of Canada’s 2001 ruling in Sharpe due to the fundamental shift in the parameters of the debate arising from teenagers’ widespread use of cellphones to transmit sexual images of one another. The trial judge found that Sharpe contemplated electronic transmission of such images, albeit through other mediums. The trial judge found that the accused’s conduct did not come within the Sharpe exceptions of artistic expression or consensual private creations of lawful sexual activity. No discrimination on the basis of age arose under the Sharpe exceptions. The trial judge concluded there was no reasonable likelihood an evidentiary hearing would assist in determining whether a Charter breach arose. The trial proceeded and resulted in convictions on all counts. The accused appealed.

HELD: Appeal allowed in part. The trial judge erred in summarily dismissing the accused’s s. 7 Charter challenge to the impugned child pornography provisions. The trial judge properly framed the issue as whether the accused’s challenge raised new legal issues as a result of significant legal change, an evidentiary change in circumstances, or a fundamental shift in the parameters of the debate. However, the trial judge’s consideration of the issue was solely confined to whether the widespread use of cellphones by teenagers to transmit sexual images constituted a fundamental shift in the parameters of the debate. A new legal change arose post-Sharpe based on Supreme Court of Canada jurisprudence exhibiting a departure from collapsing the s. 7 analysis within s. 1 justification analysis as had occurred in Sharpe. An additional new legal issue arose as to whether the impugned provisions were grossly disproportionate, as Sharpe was confined to overbreadth concerns. Despite the fact that success was far from certain, there was a reasonable likelihood an evidentiary hearing would assist in determining the constitutional issues raised by the accused. No error occurred with respect to dismissing the accused’s s. 15 challenge, as any differentiation based on age in the impugned provisions was with respect to the complainant rather than the accused. Any issue with respect to the breadth of the Sharpe exceptions as they related to teenage conduct was relevant to the s. 7 analysis rather than s. 15. The conviction for uttering threats did not result from misapprehension of the evidence or otherwise result in an unreasonable verdict. The convictions for the child pornography offences were set aside and a new trial was ordered.