2005 BCCA 584 R. v. J.E.I.

THERE IS A BAN ON DISCLOSURE PURSUANT TO

SECTION 486(4.1) OF THE CRIMINAL CODE

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Lowry
	The Honourable Madam Justice Kirkpatrick

R.G. Stacey	Counsel for the Appellant
S.J. Brown	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
November 7, 2005
Place and Date of Judgment:	Vancouver, British Columbia
December 1, 2005

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Chief Justice Finch:

[1] The appellant appeals his conviction in the Supreme Court of British Columbia for possession of child pornography, pronounced on 11 August 2003 after a trial by judge alone. The appellant was sentenced to a nine month conditional sentence to be followed by two years probation.

[2] The alleged child pornography is videotapes containing a series of images of four teenaged girls and an adult woman taken when each was alone and naked in the bathroom of the appellant’s home. The four girls were under the age of 18 when the videotapes were made.

[3] On this appeal the appellant does not dispute that he was in possession of the videotapes. The only issue is whether the trial judge erred in finding the images on the tapes constituted child pornography within the meaning of s. 163.1(1)(a)(ii) of the Criminal Code. It provides:

s. 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 …

[Emphasis added.]

[4] Specifically, the question is whether the dominant characteristic of the depictions of the four young women is for a sexual purpose.

Facts

[5] The videotapes in issue were turned over to the R.C.M.P. by L.M., the appellant’s former girlfriend. At trial, L.M. and the four young women identified themselves on the videotapes, and testified that they were unaware they were being filmed. The four young women were all friends of the appellant’s 16 year old daughter and were all around the age of 16 at the time the videotapes were made.

[6] The videotapes were taken surreptitiously in the bathroom at the appellant’s home, from an apparent vantage point beneath a linen closet in the bathroom. There was a board at the base of the linen closet that could be removed by a person standing in the stairwell to the basement permitting one to look directly into the bathroom.

[7] The trial judge described the content of the videotapes as follows:

[9] The videotapes the four young women were shown, in general, contained extensive and lengthy tapings of L.M. in the bathroom going in and out of the shower and attending to herself in the mirror. These videos are consistently of L.M. when she is unclothed. The footage of the four young women is brief and somewhat interspersed in the videos depicting L.M.. In each however, each of the young women is depicted unclothed, and variously, their breasts, vaginal area and buttocks are exposed. The scenes end when these parts of their bodies are covered. The four young women all testified to being unaware that they were being videotaped. The videotapes themselves are clearly taken of subjects who were unaware. The filming is clearly an invasion of the privacy anyone would expect in the circumstances.

. . .

[17] …What the videotapes do show is brief clips of the four young women interspersed with more extensive segments of L.M. going about her activities of bathing and grooming. None of these women are aware of the camera and nothing overtly sexual takes place on the tapes. They simply depict various women in a condition that exposes their sexual organs, breasts, vaginal area and buttocks in circumstances where they had an expectation of complete privacy. The videotaping of such conduct is clearly reprehensible and constitutes a gross breach of the privacy of the young women involved. The interest taken in the young women by the person videotaping is obviously related to their state of undress.

Trial Judge’s Decision

[8] There were two issues before the trial judge, namely whether the videotapes were “child pornography”, and whether the appellant had possession of them. The trial judge held that the appellant was in possession of the videotapes, and the appellant does not appeal that finding.

[9] As to the first issue, the trial judge held that the videotapes constituted child pornography under s. 163.1(1)(a)(ii) of the Criminal Code. The judge identified the real issue as whether the “dominant characteristic” of the images of the young women was for a “sexual purpose”.

[10] The trial judge instructed himself on the law laid down in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2. The judge referred to McLachlin C.J.’s observations at paragraph 51, that setting innocent family photos in a clearly sexual context, for example by adding a caption to the picture, might change the dominant characteristic of the photo into an unmistakably sexual one. The trial judge continued:

[19] In the present case, the context of the images of the four young women is the invasion of privacy of each of them, and more extensively of L.M. There are brief flashes of other material that might be overtly sexual. The tape had obviously been copied over but they have not, for instance, been significantly mingled with the extended overtly sexual material depicting L.M. and J.E.I. that was available. On the other hand, it certainly cannot be said that the material has artistic merit or an educational, scientific or medical purpose. I think it must be recognized that the variety of human experience is such that depictions of young women such as these may cause sexual stimulation to some viewers, although I think it is safe to say that most viewers would find the depictions in themselves innocuous, while finding the surreptitious activity that led to their creation reprehensible. These are not, however, depictions that were created innocently as are those in the “family photos” example used in R. v. Sharpe, supra. There being no innocent or artistic educational, scientific or medical purpose to such depictions it seems to me the question comes down to whether there is a reasonable doubt on the issue of sexual purpose on the grounds that some other reprehensible purpose may have been the intention, such as some sort of thrill over the invasion of privacy as such.

[20] At this point, however, I think the matter becomes somewhat circular. The nature of the invasion of privacy is after all the unguarded depiction of the sexual organs and nudity of the subject. Whether such depictions cause sexual stimulation in some viewers might not express quite the test in a case of this kind, which is perhaps more accurately described as one of sexual embarrassment of the subjects. I am satisfied beyond a reasonable doubt that whatever was intended by the person making the videotapes, such depictions are for a sexual purpose within the meaning of the section and that the harm sought to be inhibited by that section includes this activity. The tapes are therefore child pornography within the meaning of the section.

Counsels’ Submissions

[11] The appellant says that although the images depict the sexual organs of persons under the age of 18, they do not otherwise meet the definition in s. 163.1(1)(a)(ii). The appellant argues that the images do not meet the test set out in R. v. Sharpe because the images depict non-sexual acts, are not blatantly pornographic, do not advocate or counsel sexual offences with persons under 18, and are not visual representations near the extreme end of the spectrum. The appellant says the trial judge erred in finding the context of these videos, the surreptitious invasion of the girls’ privacy, sufficient to bring these videos within the definition of s. 163.1(1)(a)(ii).

[12] The Crown says the taking of images of young women, who were in a private bathroom and unaware of the filming, which captures the unguarded exposure of their sexual organs, cannot reasonably be said to have any purpose other than sexual. The Crown says that beyond the surreptitious taking of the images, the content of the videos also provides evidence of an unmistakably sexual purpose. The teenage girls were filmed only while undressing or while they were naked, indicating a singular interest in their nudity. The clips of the girls were interspersed with, and placed on, the same tape as the longer and more graphic images of a naked female adult, L.M. The Crown’s position is that even without the surreptitious nature of the filming, there is no other reasonable conclusion than that the images were for a sexual purpose.

Analysis

[13] There is no dispute that the images depict the sexual organs of persons under the age of 18. The breasts, vaginal area and buttocks of these young women are exposed in the images captured on the videos. The only issue is whether the dominant characteristic of the videos was depiction for a sexual purpose.

[14] In R. v. Sharpe, the Supreme Court of Canada said that an objective approach is to be applied to the terms “dominant characteristic” and “for a sexual purpose”:

[50] The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

[51] Family photos of naked children, viewed objectively, generally do not have as their “dominant characteristic” the depiction of a sexual organ or anal region “for a sexual purpose”. Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable observer: See R. v. Hurtubise, [1997] B.C.J. No. 40 (Q.L.) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the “dominant characteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”. If there is a reasonable doubt, the accused must be acquitted.

[Emphasis added.]

[15] The appellant says that “for a sexual purpose” should be applied in a restrained manner to capture only “visual representations near the extreme end of the spectrum”. The appellant says that if there was any sexual purpose in this case it was not sufficiently extreme to come within s. 163.1(1)(a)(ii). The appellant points to R. v. Sharpe where the court stated:

[47] A restrained interpretation of “explicit sexual activity” is also supported by reading s.163.1(1)(a)(i) and s.163.1(1)(a)(ii) together. They are designed to cover two types of depictions: (i) the depiction of explicit sexual activity; and (ii) the static depiction of the sexual organs or anal regions of children. Subparagraph (ii) clearly indicates that Parliament’s concern was with visual representations near the extreme end of the spectrum. While it is possible in the abstract to argue that Parliament intended a much broader sweep for subpara. (i) than for (ii), it seems more likely that Parliament was seeking to catch in subpara. (i) the activity-related counterpart to subpara. (ii).

[Emphasis of McLachlin C.J.]

[16] This case turns on the application of s. 163.1(1)(a)(ii). Subparagraph (ii) does not require that the images be for an extreme sexual purpose for the offence to be complete. In order to limit offending visual representations to those at or near the extreme end of the spectrum, Parliament restricted subparagraph (ii) to depictions of the sexual organs or anal regions of children. Similarly, s. 163.1(1)(a)(i) is also restricted to criminalizing visual representations near the extreme end of the spectrum by the use of the word “explicit” sexual activity. In the case of s-s. (ii), if the dominant characteristic is for a sexual purpose, depictions of sexual organs or anal regions of children are extreme without more.

[17] In this case, it is not determinative that the images depict only nude teenage girls and do not display overt sexual acts. Photographs of nude children may well constitute child pornography depending on their context. Part of the relevant context of these images is the surreptitious taking of the images, which resulted in the “unguarded depiction of the sexual organs and nudity of the subject”. These images were not taken innocently. They constitute a serious violation of the privacy and dignity of these four young women. As the trial judge noted, the images resulted in the “sexual embarrassment” of the subjects.

[18] The trial judge did not rely exclusively on the surreptitious nature of the images in determining there was an unmistakably sexual purpose. In describing the content of the videos, the trial judge notes that the young girls were naked in the images and that the scenes end when they are clothed. He said at paragraph 17:

The interest taken in the young women by the person videotaping is obviously related to their state of undress.

Further, the shorter clips of the young girls were placed on the same video as the far more extensive and graphic images of the adult female. Together with the surreptitious nature of the filming, the inference that the images were for a sexual purpose is compelling.

[19] There is no suggestion that the images were taken accidentally, or for a medical, scientific, educational, artistic or other lawful purpose. I do not accept the appellant’s suggestion that the purpose of these videos was to annoy the subjects of the video. The videos show a clear interest in the nakedness of the teenage girls, and of the adult woman. Given the content and context of the videotapes, the only reasonable and objective conclusion is that the dominant characteristic of these videotapes was for a sexual purpose.

Conclusion

[20] The trial judge held that the dominant characteristic of these depictions was for a sexual purpose within the meaning of s. 163.1(1)(a)(ii) and therefore constituted child pornography. I cannot say that he erred in that conclusion. I would dismiss the appeal.

“The Honourable Chief Justice Finch”

I Agree:

“The Honourable Mr. Justice Lowry”

I Agree:

“The Honourable Madam Justice Kirkpatrick”