



WARNING

The President of the panel hearing this appeal directs that the
    following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be
    made, during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether
    the order is in the interest of the proper administration of judge, the judge
    or justice shall consider

(a) societys interest in
    encouraging the reporting of offences and the participation of victims and
    witnesses in the criminal justice process;

(b) the safeguarding of the
    interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness
    to give a full and candid account of the acts complained of if the order were
    not made;

(d) whether the witness needs
    the order for their security or to protect them from intimidation or
    retaliation;

(e) the protection of justice
    system participants who are involved in the proceedings;

(f) whether effective
    alternatives to the making of the proposed order are available in the
    circumstances;

(g) the salutary and deleterious
    effects of the proposed order; and

(h) any other factor that the
    judge or justice considers relevant.

(3)     If an accused is charged
    with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection
    160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272,
    273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor
    or the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is,
    or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.),
    s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c.
    1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s.
    2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20;
    2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25,
    s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B.,

2019
    ONCA 237

DATE: 20190327

DOCKET: C64894

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

William Thompson and Samara
    Secter, for the appellant

Lisa Joyal, for the respondent

Heard: January 28, 2019

On appeal from the conviction
    entered by Justice Richard T. Knott of the Ontario Court of Justice, dated July
    12, 2017.

Reasons for Decision

[1]

The appellant appeals from his conviction for the offences of possession
    and importation of child pornography under s. 163.1 of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

In this appeal, the primary issue is whether the impugned images meet
    the definition of child pornography in s. 163.1(a)(ii) of the
Criminal Code
,
    which reads as follows:

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,



(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;

[3]

The appellant was stopped by the Canada Border Services Agency (CBSA) as
    he drove his transport truck into Canada.  During his search of the appellants
    truck, CBSA Officer Tristan Garrah located the appellants laptop and an
    external hard drive.  His investigation of the laptop revealed numerous images
    of children and those of adults in diapers.  The appellant admitted to Officer
    Garrah that he is an infantalist with a fetish for adults in diapers but
    claimed he has no sexual interest in children wearing diapers.  The appellants
    statement to Officer Garrah was admitted into evidence at trial on consent. 
    The appellant did not testify or call any evidence.

[4]

At trial, also on consent, the Crown filed the CBSA forensic report of Digital
    Forensic Examiner, Reney Pharand, with respect to the appellants laptop and
    external hard drive.  Officer Pharand reported finding on the laptop and drive thousands
    of images of adults in diapers or adults dressed as children or babies and
    thousands of images of children in diapers, including baby diaper
    advertisements.

[5]

The sole Crown witness, Detective Constable Chris Barkey of the Ontario
    Provincial Police, testified about his review of the images on the appellants
    laptop and drive.  In addition to a significant amount of images and videos
    that focused on adults wearing or utilizing diapers, D.C. Barkey noted about
    13,483 other images to be of investigative interest because they depicted
    children in diapers in various stages of dress. He testified that there were
    787 images, of which 600 were unique, that he believed constituted child
    pornography.  During his evidence, he specifically reviewed 23 images of
    children in diapers and testified as to the age of the individuals in the photographs;
    what the focal point and dominant characteristic of the photographs were; and
    whether the individuals in the images were posed in a sexual or unnatural
    manner.

[6]

The trial judge applied an objective approach and determined that the
    23 images of the children had as their dominant characteristic the depiction,
    for a sexual purpose, of their sexual organs and/or anal regions.  As a result,
    he concluded that the Crown had proven beyond a reasonable doubt that the
    images met the definition of child pornography under s. 161.1(1)(a)(ii) of
    the
Criminal Code
.

[7]

The appellant raises two principal grounds of appeal:


i.

The trial judge erred in his interpretation of child pornography by
    failing to exercise the restraint required to avoid over-criminalization of
    images that are not prohibited as child pornography.  As a result, the trial
    judge erred in finding that the images depicted the childrens sexual organs
    or anal regions because they were not visible or delineated in the bulky
    diapers the children wore in the photographs.  That the focus of the images may
    have been on those areas is not sufficient to criminalize their depiction.


ii.

The trial judge erred in relying on and adopting the inadmissible
    opinion evidence of D.C. Barkey with respect to the images.

[8]

We are not persuaded by these submissions. We see no error in the trial
    judges conclusions.

[9]

There is no issue that in considering the images, the trial judge
    applied the correct objective approach of whether a reasonable viewer, looking
    at the depiction objectively and in context, would see its dominant
    characteristic as the depiction of the [childrens] sexual organ or anal
    region and the same applies to the phrase for a sexual purpose:
R. v.
    Sharpe
, 2001 SCC 2, at para. 50.

[10]

Further,
    having reviewed several of the images referenced by the trial judge in his
    reasons, we see no error in his factual observations and findings.

[11]

With
    respect to the depiction of the sexual organs or anal regions for a sexual
    purpose, in particular, we note the following:  the shape of the childrens
    sexual organs and anal regions through the indentation of their diapers is
    clearly visible in many of the images, and the children are posed in a
    sexualized manner; the female childs pre-pubescent breasts are visible in
    image 1 in which the child is clad only in a diaper and posed in a sexualized
    manner across a bed.  All of the children in those photos are clearly well
    under the age of 18 but also clearly beyond the age of children who ordinarily
    wear diapers. The principal focus of those photographs is the depiction of the
    childrens diapered groin areas. Image 7, primarily focussed on a male childs naked
    buttocks and sexual organs, ostensibly during a diaper change, also properly
    fits within the definition of child pornography.  Given the images primary visual
    emphasis and its placement among the other pornographic images, this photograph
    cannot be viewed objectively as a family photo but rather assumes from this
    context the dominant characteristic of the depiction of the childs sexual
    organs and anal region for a sexual purpose:
Sharpe
, at para. 51.

[12]

Nor
    do we agree that the trial judge impermissibly relied upon D.C. Barkeys
    evidence concerning the images reviewed at trial. In our view, D.C. Barkeys
    evidence was not proffered as expert opinion evidence nor was it understood as
    such.  In that respect, we note that there was no objection to D.C. Barkeys
    evidence; rather, the appellants trial counsel sought to elicit the officers
    agreement to a suggested description of the images and then referenced this
    evidence in closing submissions.  More significantly, the trial judges reasons
    do not indicate that he improperly delegated his fact-finding role to D.C.
    Barkey.  The trial judge reviewed the images and came to his own conclusions.

[13]

In
Sharpe
, while advocating a restrained interpretation, the Supreme
    Court also cautioned against fixing the precise content of the kinds of
    depictions that are caught under the definition of child pornography.  We
    agree with the prudence of this approach, given the myriad different depictions
    that may constitute child pornography.  A trial courts analysis of which depictions
    fall under the definition of child pornography, including under s.
    163.1(1)(a)(ii) of the
Criminal Code
, necessarily remains a fact and
    context-driven exercise, which, absent error, is entitled to deference from an
    appellate court.

[14]

We
    see no such error in this case. The appeal is dismissed.

David
    Watt J.A.

Grant
    Huscroft J.A.

L.B.
    Roberts J.A.


