



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2015 ONCA 346

DATE: 20150515

DOCKET: C54947

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lorne Campbell

Appellant

Jonathan Bliss, for the appellant

Melissa Adams, for the respondent

Heard: April 30, 2015

On appeal from the conviction entered by Justice Ramez
    Khawly of the Ontario Court of Justice on May 13, 2011, and the sentence
    imposed on May 13, 2011.

ENDORSEMENT

[1]

The appellant was convicted of knowingly violating a condition of his Long
    Term Supervision Order that he not view or possess pornography.

[2]

Between 2:30 and 4:30 a.m., the appellant and another resident were
    observed watching
Latin Lovers 2
on cable television at the half-way
    house where both resided.  The security guard who was on duty that night
    testified that the two men were watching pornography. The other resident also
    described the programme as pornographic, as did the appellants parole officer.

[3]

At trial, the Crown called the security guard, the other resident, and
    the appellants parole officer as witnesses. The appellant did not testify.

[4]

A DVD of the programme was made an exhibit at trial. It was one hour and
    twenty minutes in duration, was divided into two episodes, and was segmented
    into scenes. The language of the DVD was Spanish.  There were no subtitles. The
    DVD was fast forwarded in open court and paused to view the segments that the
    Crown alleged were pornographic.

[5]

The trial judge concluded that the programme was pornographic and that
    the appellant had knowingly viewed pornography in violation of a condition in
    his Long Term Supervision Order.

[6]

In this court, the appellant advanced two grounds of appeal.

[7]

First, he submitted that the trial judge erred by not watching the
    entire DVD and therefore failed to consider the context of the programme. He
    does not take issue with the trial judges definition of pornography. Rather,
    he submits that the trial judge failed to consider whether the evidence, as a
    whole, satisfied that definition.

[8]

We disagree with the appellants submission. The DVD was played in open
    court. The dialogue of the DVD was Spanish. There was no evidence that the
    appellant spoke or understood Spanish.  There were no subtitles. While the DVD
    was fast forwarded in open court and paused to view the segments that the Crown
    alleged were pornographic, the trial judge saw the entire programme.

[9]

We do not accept that the trial judge erred in viewing the DVD in the
    manner in which he did. He considered the context and based on his review, it
    was open to him to determine that it constituted pornography within the meaning
    of the condition included in the Long Term Supervision Order.

[10]

Second,
    the appellant submits that even if one accepts that the programme constituted
    pornography, the trial judge erred in applying an objective standard of
mens
    rea
.

[11]

Again,
    we disagree. In his reasons for conviction, the trial judge found that the
    appellant knew he was watching pornography. There was ample evidence in the
    record to support this finding including, in particular, the evidence of the
    security guard, and the appellants flipping of the channels to try and
    disguise the fact that he was watching the programme. Moreover, the conditions
    of the Long Term Supervision Order had been reviewed with the appellant and he
    had acknowledged his understanding of the conditions. We would not give effect to
    this ground of appeal.

[12]

While
    the appellant included an appeal from sentence in his notice of appeal, he
    advanced no submissions on sentence in either his factum or oral argument.  In
    any event, we see no reason to interfere with the sentence.

[13]

The
    conviction appeal is therefore dismissed.  Leave to appeal sentence is refused.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.L.
    Benotto J.A.


