



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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kiefer, 2018 ONCA 925

DATE: 20181120

DOCKET: C61365

Hoy A.C.J.O., Watt J.A. and Then J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Kiefer

Appellant

Boris Bytensky, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: September 12, 2018

On appeal from the convictions entered on October 16,
    2015 by Justice Dale Fitzpatrick of the Superior Court of Justice, with
    reasons reported at 2015 ONSC 7028, [2015] O.J. No. 6861 (Sup. Ct.).

Hoy A.C.J.O.:

overview

[1]

The appellant was charged with counts of accessing child pornography and
    possessing child pornography between August 1, 2009 and July 30, 2010, contrary
    to ss. 163.1(4.1) and 163.1(4) of the
Criminal Code
, R.S.C. 1985, c.
    C-46 as am.

[2]

The materials recovered from the appellants computers included images
    of children (male and female) performing oral sex on adult males; engaging in
    vaginal and anal intercourse with adult males; and masturbating adults. They
    also included a video of a child performing sexual acts with a dog and graphic
    comic representations of children performing sexual acts with adults.

[3]

In his videotaped statement to police when he was arrested, the
    appellant admitted to downloading and viewing some of the material found on his
    computers. The appellant justified his accessing, possessing and viewing of the
    images of sexual abuse of children as research for a book he was writing,
    called
Safe Haven
.

[4]

Section 163.1(6) of the
Criminal Code
provides a defence to the
    offences of accessing and possessing child pornography:

No person shall be convicted of an offence under this section
    if the act that is alleged to constitute the offence

(a)     has a legitimate purpose related to the administration
    of justice or to science, medicine, education or art; and

(b)     does not pose an undue risk of harm to persons under
    the age of eighteen years.

[5]

At trial, the appellant conceded that some of the material at issue
    constituted child pornography. The focus at trial was whether the Crown had
    disproved beyond a reasonable doubt that, in accessing and possessing the child
    pornography, the appellant had a legitimate purpose related to art. The
    appellant did not testify, but his statement to police was introduced in
    evidence by the Crown.

[6]

The trial judge found that the appellants initial, subjective purpose
    for accessing and possessing the child pornography may have been for a
    legitimate purpose related to art. But the trial judge was satisfied beyond a
    reasonable doubt that, subsequently, the appellants subjective purpose for
    accessing and possessing the child pornography was to satisfy [his] fascination
    and morbid curiosity with the material. Accordingly, the trial judge concluded
    that the appellants accessing and possessing of child pornography was for a
    purpose other than those listed in s. 163.1(6)(a), and the Crown had
    established beyond a reasonable doubt that s. 163.1(6)(a) had not been
    satisfied. This alone was sufficient to dispose of the appellants s. 163.1(6)
    defence.

[7]

The trial judge further found that, even if he had been left with
    reasonable doubt as to the appellants subjective purpose in accessing and
    possessing the child pornography, there was no objectively verifiable
    connection between the appellants conduct and his stated purpose for accessing
    and possessing the child pornography. As a result, the trial judge found the appellant
    guilty on both counts.

[8]

The appellant appeals his convictions. For the reasons that follow, I
    would dismiss the appeal.

the issues on appeal

[9]

The appellants arguments on appeal can be distilled to
    the following:
[1]

1.

The trial judge
    erred in failing to consider whether the appellant had a dual purpose for
    accessing and possessing the child pornography. Section 163.1(6)(a) does not
    require that a legitimate purpose (such as art) be the
only
purpose for which the appellant accessed and possessed the child pornography;

2.

Even if s.
    163.1(6)(a) requires that a legitimate purpose be the only purpose for which
    the appellant accessed and possessed the child pornography, the trial judge
    made multiple errors in concluding that the Crown had proven beyond reasonable
    doubt that the appellant did not, from a subjective standpoint, have genuine,
    good faith reason for accessing and possessing the child pornography for a
    purpose related to art; and

3.

The trial judge
    improperly considered evidence going to the appellants subjective purpose in
    concluding there was no objectively verifiable connection between the impugned
    acts and the appellants stated purpose.

[10]

Before addressing these arguments, I will review the trial judges
    reasons in more detail to provide a framework for my analysis.

the trial judges reasons

[11]

In
R. v. Katigbak
, 2011 SCC 48, 3 S.C.R. 326, the Supreme Court outlined
    the applicable legal framework to the s. 163.1(6) defence.

[12]

On
    the s. 163.1(6)(a) legitimate purpose prong of the defence,
Katigbak
requires the court to evaluate: (1) whether it is left with a reasonable doubt
    that the accused, from a subjective standpoint, had a genuine, good faith
    reason for accessing and/or possessing child pornography for one of the listed
    grounds; and (2) whether, based on all of the circumstances, a reasonable
    person would conclude that (i) there is an objective connection between the
    accuseds actions and his or her stated purpose, and (ii) there is an objective
    relationship between his or her stated purpose and one of the protected grounds
    (in this case, art):
Katigbak
, at paras. 58, 60.

[13]

On
    the s. 163.1(6)(b) undue risk of harm prong of the defence, the court must
    consider whether the accuseds actions pose an undue risk of harm to persons
    under the age of eighteen years. If the court is satisfied beyond a reasonable
    doubt that the accuseds actions pose a significant risk of objectively
    ascertainable harm to children, the accuseds s. 163.1(6) defence will fail:
Katigbak
,
    at para. 67.

[14]

The
    trial judge adverted to
Katigbak
, and then considered the appellants
    subjective purpose in accessing and possessing the child pornography.

[15]

The
    trial judge first noted that there was some overlap in the period of time in
    which the appellant had viewed the child pornography and worked on his book. He
    then considered, at para. 64 of his reasons, the chapters of
Safe Haven
that the appellant had written by the time he was charged:

The first three chapters of Safe Haven are
    about a boy who does not get along well with his parents. Essentially, the
    character is paid little attention or affection by his parents. This boy
    eventually goes to a different world where he meets another character, Haven,
    who infers that she was sexually abused by her father, stating that he always
    came home stinking drunk, and he always wanted
special
attention from me when he got home. This is the only reference to
    sexual abuse in the three draft chapters. Stating it as favourably to [the
    appellant] as possible, this fairly vague and singular reference to sexual
    abuse provides limited corroboration for his stated purpose of possessing and viewing
    child pornography as research to aid in the writing of Safe Haven. [Emphasis in
    original.]

[16]

The trial judge noted that the bare evidence
    before him as to the appellants subjective purpose was the appellants
    statement to police that he viewed the child pornography as research to
    understand the dynamics of abuse to be able to write about it: at para. 76.

[17]

The trial judge had some significant concerns
    about [the appellants] overall credibility arising from his statement [to
    police]: at para. 68. First, nowhere in his statement to police had the
    appellant explained why the pornography he viewed was necessary or even of
    assistance to be able to write about such sexual abuse: at para. 73. Second,
    there was no evidence the appellant had taken any notes as he viewed the child
    pornography or conducted any further research into child abuse in the course of
    preparing to write about the subject: at paras. 74-75. Third, the appellants
    stated purpose for accessing and possessing the child pornography  namely, to
    understand the dynamics of abuse  was not credible in light of the 15 years
    the appellant had worked as a social worker, which provided him with real life
    experience as to the dynamics of child abuse, generally: at paras. 77-79. Fourth,
    in his statement, the appellant said that he thought the term pthc  a
    well-known child pornography search term that stands for pre-teen hardcore 
    meant pathetic. In the trial judges view, this was simply unbelievable, as
    the appellant conducted many pthc searches and admitted a level of search
    sophistication and knowledge incompatible with the suggestion he believed
    pthc meant pathetic: at paras. 80-81.

[18]

The trial judge then reproduced what he
    characterized as the most adverse portions of the appellants statement. The
    appellant stated several times that he had a morbid curiosity or a
    fascination with child pornography. He also said:

You know what? I  you want, Ill be honest
    about this. Ill be honest with you. Unfortunately, when youre dealing with
    stuff like abuse and, I think probably a crime scene officer would say the same
    thing, alright?
Unfortunately, sometimes it
    becomes too interesting
and thats the problem with
    it, alright? Thats, thats why Im calling myself a fucken idiot because by
    rights I shouldve walked away from it. [Emphasis added.]

[19]

The trial judge was prepared to accept the
    possibility that the appellant may have begun his investigation of child
    pornography with the subjective belief that he had a genuine, good faith reason
    to access and possess the child pornography  namely, as research to enable him
    to write his book. However, the trial judge interpreted the appellants
    statements to the police as being an acknowledgement that he initially accessed
    the child pornography as research for his book, but that it was his fascination
    and morbid curiosity that compelled him to continue to access and possess the
    material: at paras. 84-85.

[20]

The trial judge concluded, at para. 85, that:

[T]he combination of issues with [the
    appellants] credibility, the limited corroboration of his stated purpose, and
    [the appellants] statement that he was fascinated with the images and had a
    morbid curiosity about them combine to persuade me beyond a reasonable doubt
    that, as his investigation progressed, he did not subjectively believe that he
    had a genuine, good faith reason to possess and access child pornography.
    Instead, his possession and accessing was for a purpose other than those listed
    in section 163.1(6)(a). As such, I found that the Crown has established beyond
    a reasonable doubt that section 163.1(6)(a) has not been satisfied.

[21]

The trial judge was also persuaded beyond a
    reasonable doubt that, in any event, the appellant did not have a genuine, good
    faith reason to possess either the video of a female child performing sexual
    acts with a dog, or the graphic comic images showing a child engaging in sexual
    acts with adults: at para. 86.

[22]

The appellant had not explained in his statement
    to police how the video of the child engaging in a sexual act with a dog would
    assist him in understanding the dynamics of abuse. There were no references in
    the draft chapters of Safe Haven to sexual acts between children and animals:
    at para. 87.

[23]

Moreover, the appellants statement to police
    disclosed a personal basis, unrelated to any of the enumerated grounds under s.
    163.1(6)(a), for his possession of the video, as the appellant had volunteered:
    [y]ou wanna know what turns my crank? Bestiality. Youll find it on the damn
    thing  dogs and women. The trial judge concluded that this statement
    demonstrated the appellants personal interest in and attraction to sexual
    interactions between females and dogs, which is the very kind of sexual content
    displayed in this video: at para. 88.

[24]

As to the comic images, the trial judge
    questioned how drawings or fictional images could assist the appellant in
    understanding the dynamic power play that takes place. The appellant had also
    not offered any explanation for the graphic comics in his statement and did not
    suggest that the images were to be used in furtherance of his writing: at para.
    89.

[25]

The trial judge further concluded that, even if
    he were left with reasonable doubt as to whether the appellant had a
    subjective, good faith reason for accessing and possessing the child
    pornography, he was satisfied beyond a reasonable doubt that there was no
    objectively verifiable connection between the appellants impugned conduct and
    his stated purpose of viewing the child pornography to understand the dynamics
    of abuse to be able to write about it. The trial judge provided seven reasons
    for this conclusion, at para. 94, most of which also informed his credibility
    analysis:

1.

There was no evidentiary basis to support the suggestion that the
    child pornography the appellant viewed was necessary or even of assistance in
    writing about child abuse, as the images and videos presented nothing more
    than base sexual scenarios devoid of any insight in the dynamics of that
    abuse or the impact upon the victims.

2.

The appellant made no notes with respect to the child pornography he
    viewed or his insights as to the dynamics of abuse.

3.

The appellant did not undertake any other research into sexual
    abuse.

4.

The three draft chapters of Safe Haven contained only a single and vague
    reference to sexual abuse.

5.

There was no evidentiary basis to suggest that the video showing a
    female child engaged in sex acts with a dog would be instructive or otherwise
    assist the appellant in writing his book.

6.

There was no evidentiary basis to support the suggestion that the
    graphic comic strip showing an adult engaged in sexual acts with a child would
    be instructive or otherwise assist the appellant in writing his book.

7.

The appellants statement to police that he accessed and possessed
    the child pornography to satisfy his fascination and morbid curiosity did
    not fit with his stated purpose for possessing the materials.

[26]

In light of his conclusion that the appellant
    did not have a legitimate purpose for accessing and possessing the subject
    child pornography, the trial judge found it unnecessary to consider the 163.1(6)(b)
    undue risk of harm element of the defence: at para. 96.

[27]

Thus, the trial judge was satisfied beyond a
    reasonable doubt that the appellant was guilty of the offences of accessing and
    possessing child pornography.

analysis

1.   Section 163.1(6) does not provide a defence to a person who
    accesses and possesses child pornography for a purpose other than a legitimate
    purpose

[28]

The appellant argues that s. 163.1(6)(a) does
    not require that a legitimate purpose (such as a purpose related to art) be the
only
purpose for which an accused accesses and
    possesses child pornography. The appellant submits that the trial judge erred
    by failing to consider the possibility that he subjectively had a dual purpose
    for accessing and possessing the child pornography  namely, for the purpose of
    writing his book
and

for
    the purpose of satisfying his personal fascination or morbid curiosity with
    the material. He argues that a dual purpose for accessing and possessing child
    pornography should be permitted, as long as the primary purpose was a
    legitimate purpose. Since the appellants primary purpose for accessing and
    possessing the child pornography was related to art, it should not matter if he
    was also fascinated by the child pornography, or enjoyed viewing it.

[29]

In advancing this argument, the appellant relies
    on the text of s. 163.1(6)(a)
.
He notes that
    the provision does not say that a legitimate purpose related to the
    administration of justice, science, medicine, education or art must be the
    sole purpose for which the accused accesses or possesses child pornography. He
    argues that the use of the indefinite article a  rather than the definite
    article the  before legitimate purpose in s. 163.1(6)(a) signals that the
    legitimate purpose need not be the sole purpose for accessing and possessing
    child pornography. The appellant further relies on this courts decision in
Brown
    v. Durham
(1999)
, 43 O.R. (3d) 223, leave to
    appeal granted [1999] S.C.C.A. No. 87, where this court recognized that a
    police stop conducted under the auspices of the
Highway Traffic Act,
R.S.O. 1990, C. H.8 for a purpose contemplated by the
    legislation and for another purpose may be lawful.
[2]
The appellant says
Durham
supports his argument that a dual purpose should be accepted under
    the legitimate purpose prong of the defence in s. 163.1(6).

[30]

I reject this argument.

[31]

As a preliminary matter, the trial judge found that
    while the appellant
may

have
    initially had a subjective, good faith reason for accessing and possessing child
    pornography, the appellant subsequently accessed and possessed child
    pornography for the purpose of satisfying his fascination and morbid
    curiosity with the material: at paras. 84-85. Assuming that the appellant
    initially had a legitimate purpose (i.e. a purpose related to art), he ceased
    to have one thereafter and continued to access and possess child pornography
    for a purpose that was not legitimate. On this finding of fact below, the
    appellant did not have a dual purpose; he had a singular, illegitimate purpose.
    The trial judges factual findings are entitled to deference on appeal. Below, I
    conclude that there is no basis to interfere with that finding of fact. This is
    sufficient to dispose of the appellants first argument.

[32]

In any event, I do not agree that s. 163.1(6)
    provides a defence where an accused accesses and possesses child pornography
    for both a legitimate and an illegitimate purpose.

[33]

First, I do not agree that the text of s.
    163.1(6)(a) contemplates that the accused may have both a legitimate and
    illegitimate purpose. The indefinite article a is necessarily employed in s.
    163.1(6)(a) because that subsection identifies several purposes for which a
    person may legitimately access and possess child pornography, provided that so
    doing does not pose an undue risk of harm to persons under the age of eighteen
    years. The definite article the could not have been employed in this context.
    The indefinite article a simply indicates that a person may invoke any one or
    more of the specified
legitimate
purposes. It does
    not signal that a person may invoke s. 163.1(6) where the person has another
    purpose, which is not legitimate.

[34]

Further,
Durham
does not assist the
    appellant. In that case, the police learned that an outlaw motorcycle gang
    was planning a large function in a relatively remote area near a small
    community. The police established checkpoints and stopped anyone driving a
    Harley Davidson motorcycle or wearing the colours of the host, or one of the
    invited, gangs. The motorcycle gang members alleged that the stops at the checkpoints
    were unconstitutional.

[35]

The trial judge found that highway safety
    concerns were one of the purposes for the stops, and the fact that there were
    other purposes for the stops in addition to highway traffic concerns did not
    render the stops unlawful.

[36]

In considering whether the traffic stops were
    authorized by law, Doherty J.A., for the court, wrote, at pp. 236-238:

As long as the
    additional police purpose is not improper
and
    does not entail an infringement on the liberty and security of the detained
    person beyond that contemplated by the purpose animating s. 216(1) of the [
Highway Traffic Act
], I see no reason
    for declaring that a legitimate police interest beyond highway safety concerns
    should taint the lawfulness of the stop and detention.



While I can find no sound reason for invalidating an otherwise
    proper stop because the police used the opportunity afforded by that stop to
    further some other legitimate interest,
I do see strong
    policy reasons for invalidating a stop where the police have an additional
    improper purpose
.
[Emphasis added.]

[37]

In this case, what the appellant characterizes
    as his additional purpose for accessing and possessing child pornography was
    not a legitimate purpose, and therefore, was an improper purpose.

[38]

Second, the Supreme Courts framing of the legal
    test in respect of s. 163.1(6)(a) in
Katigbak
contemplates that an accused must have a singular, legitimate purpose in order
    to avail himself or herself of the s. 163.1(6) defence. On the subjective prong
    of the test, the court inquiries into whether the accused subjectively had 
a

genuine, good faith
reason
for possessing child pornography
for one of the listed grounds
 (emphasis added):
Katigbak
, at
    para. 58. On the objective prong of the test, the court asks whether a
    reasonable person would conclude that (1) there is an objective connection
    between the accuseds actions and his or her
purpose
; and (2) there is an objective relationship between his or her
purpose
and one of the protected
    activities (emphasis added):
Katigbak
,
at
    para. 60.
Katigbak
does not contemplate that
    an accused can have both a legitimate and illegitimate purpose, and come within
    the s. 163.1(6) defence.

[39]

Third, and most importantly, the s. 163.1(6)
    defence cannot be read in a way that defeats Parliaments objective of
    criminalizing child pornography and protecting children from abuse. To
    interpret the statutory defence in s. 163.1(6) in the broad manner that the appellant
    advocates would go beyond protecting expressive freedom and would defeat
    Parliaments objective of criminalizing child pornography and protecting
    children from abuse:
Katigbak
, at para. 38. Accessing and possessing
    child pornography for the purpose of fulfilling a personal interest in the
    material is the very behaviour that Parliament has sought to criminalize.

[40]

However, as discussed below, I accept that an
    accused may have a curiosity, fascination or other form of personal interest in
    child pornography, but ultimately access and possess child pornography for a legitimate
    purpose related to an enumerated ground in s. 163.1(6)(a). Whether an accused
    does so is a question of fact. Even then, a finding that the accused has a
    personal interest in child pornography will be an important consideration not
    only in assessing whether the accused subjectively had a genuine, good faith
    reason to access and possess the child pornography under the s. 163.1(6)(a)
    legitimate purpose prong of the defence, but also in determining whether the
    accuseds actions pose an undue risk of harm under the s. 163.1(6)(b) prong
    of the defence.

[41]

I now turn to the appellants second argument.

2.  There is no basis to interfere with the trial
    judges conclusion that the appellant did not have a subjectively genuine, good
    faith reason related to art to access and possess the subject child pornography

[42]

The trial judge concluded, beyond a reasonable doubt,
    that the appellant did not subjectively have a genuine, good faith reason
    related to art for accessing and possessing the child pornography at issue. The
    appellant attacks this conclusion, arguing the trial judge made multiple
    errors:

1. Section 163.1(6)(a) only requires that the appellants purpose be
    related to art. It does not require that the impugned actions be necessary to
    create the art. Accordingly, in assessing the appellants credibility, the
    trial judge erred in considering whether it was necessary or even of
    assistance for the appellant to view the child pornography in order to write
    Safe Haven.

2. The trial judges finding that the appellants belief that pthc
    meant pathetic was unbelievable is unreasonable. Since the appellant had
    admitted to downloading and viewing some of the materials in his police
    interview, he had nothing to gain from attempting to conceal his knowledge of
    what pthc actually stood for.

3. The fact that the appellant has a fascination with or morbid
    curiosity about child pornography does not mean that his purpose in accessing
    and possessing it was not related to art. The appellants fascination or
    morbid curiosity could co-exist alongside his accessing and possession of
    child pornography for a purpose related to art.

4. In concluding that the appellant did not subjectively have a
    genuine, good faith reason to possess the video showing a child engaged in
    sexual acts with a dog, the trial judge misapprehended the evidence. In his
    statement to police, the appellant did not say that he was interested in
    bestiality involving
children
; rather, he admitted to a sexual interest
    in bestiality involving
women
. Further, there was
    no evidence that the appellant had viewed the video of the child engaged in
    sexual activity with a dog, or even was aware of its existence. And, in any
    event, the video did not depict bestiality. It depicted a young girl fellating
    a dog, whereas bestiality requires penetration and intercourse: see
R
.
v. D.L.W.
,
2016 SCC 22, [2016] 1
    S.C.R. 402.

5. The trial judge erred in holding that the appellant did not
    subjectively have a genuine, good faith reason for accessing or possessing the
    comic graphic images. Pornographic comic images are fully capable of
    representing the dynamics of abuse, and there was no basis for the trial
    judges finding to the contrary.

[43]

These arguments do not persuade me that there is
    any basis for this court to interfere with the trial judges conclusion that
    the Crown had satisfied him beyond a reasonable doubt that the appellant did
    not have a subjective, genuine good faith purpose related to art in accessing
    and possessing the child pornography. I address each argument in turn.

[44]

First, I agree that accessing or possessing child
    pornography need not be necessary to the accuseds legitimate purpose related
    to the administration of justice, science, medicine or art, in order for the
    accused to come within the s. 163.1(6) defence. The term related to is a
    legislative expression of the broadest scope: see
Nowegijick v. The
    Queen
, [1983] 1 S.C.R. 29, at p. 39;
CanadianOxy
    Chemicals v. Canada (Attorney General)
, [1999] 1 S.C.R.
    743, at para. 16;
Canada (Information Commissioner) v. Royal
    Canadian Mounted Police Commissioner
, 2003 SCC 8, [2003] 1
    S.C.R. 66, at para. 25. The use of the term related to in s. 163.1(6)(a)
    evinces a legislative intent to capture conduct connected to the enumerated
    grounds in that subsection, but which may not be necessary to those enumerated
    grounds. Further, imposing a requirement that the accessing or possessing child
    pornography be necessary to the accuseds stated purpose is particularly
    inapposite when it comes to art: it would be difficult to prove that any aspect
    of an artistic process is necessary to the end product. By including art as a
    protected ground under s. 163.1(6)(a), Parliament must be taken to have
    intended some artistic endeavors involving the accessing and possessing of
    child pornography to fall within the scope of the defence:
Katigbak,
at para. 70.

[45]

However, in assessing the appellants
    credibility, the trial judge did not require that the appellants accessing or possessing
    the child pornography be necessary in order to write, or even of assistance in
    writing,
Safe Haven

for the appellant to
    invoke the defence in s. 163.1(6). In his interview with police, the appellant
    asserted a connection between accessing and possessing child pornography and
    his ability to write
Safe Haven
. He variously
    described his purpose as being:

[Its to] understand. Its to try to sympathize. Its to try to
    relate. Its not being used in the book.
Its, its to
    try to understand the power play that takes place.



You need to understand this is, this is my thought process and,
    if Im wrong, a judge could smack me. I dont care. But you need to understand,
    to me what happens to the children,
how that power place
    (sic), play takes place, how the manipulation happens to be able to write
    about.
Thats why. Im an idiot. [Emphasis added.]

[46]

With the appellant having explained his
    accessing and possessing child pornography as being part of his writing process
    for
Safe Haven
, the trial judge simply noted that
    the appellant had not explained why it was necessary or even of assistance to
    view the child pornography to be able to write about sexual abuse. The trial
    judge was entitled to consider the extent of the explanation provided by the
    appellant, among other factors, in evaluating the credibility of that
    explanation.

[47]

Second, there is no basis to interfere with the
    trial judges conclusion that the appellants evidence that pthc meant
    pathetic was unbelievable. Considerable deference is owed to a trial judges
    assessment of credibility. This court will defer to the trial judges findings,
    absent palpable or overriding error or legal error in the trial judges
    assessment of credibility:
R v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 26;
R v. Luceno
, 2015 ONCA 759, [2015] O.J. No. 5826, at para. 34;
R v.
    A.M.
, 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 17-19,
    21.

[48]

The trial judge explained that he found the
    appellants statement unbelievable because the appellant had repeatedly used
    the term pthc  in combination with other suggestive search terms  to search
    for child pornography and because the appellant acknowledged a degree of
    sophistication in searching for child pornography incompatible with his
    statement that pthc meant pathetic. This conclusion was available to the
    trial judge on the evidence before him.

[49]

Third, I accept that an accused may have a morbid
    curiosity or fascination with child pornography, yet access and possess
    child pornography for a purpose related to art and successfully invoke the
    defence in s. 163.1(6). Whether the accused did so is a question of fact. However,
    a finding that an accused has such an interest will be an important
    consideration under both the s. 163.1(6)(a) legitimate purpose and s.
    163.1(6)(b) undue risk of harm prongs of the defence.

[50]

Under the s. 163.1(6)(a) legitimate purpose
    prong of the defence, the accused must have a subjective, genuine, good faith
    reason for accessing and/or possessing child pornography for a purpose related
    to one of the protected grounds:
Katigbak
, at
    para. 58. This is a question of fact. If an accused has a morbid curiosity or
    other form of personal interest in child pornography, the court might conclude
    that the accused ultimately did not have a genuine, good faith reason for
    accessing and/or possessing child pornography related to one of the protected
    grounds, and instead subjectively accessed and/or possessed the pornography for
    the purpose of furthering that personal interest.

[51]

Under the s. 163.1(6)(b) undue risk of harm
    prong of the defence, the court must consider whether the accuseds actions
    pose an undue risk of harm to persons under the age of eighteen years. The
    question is whether the accuseds actions pose an objectively ascertainable,
    significant risk of physical and/or psychological harm to children:
Katigbak
, at para. 67. Where an accused accesses and/or possesses child
    pornography for a legitimate purpose enumerated in s. 163.1(6)(a), but with a corresponding
    personal interest in the material, this may increase the risk of harm to
    children. In particular, accessing and/or possessing child pornography in this
    context risks reinforcing cognitive distortions in the viewer and possibly
    inciting future offending; contributing to the market for child pornography and
    the abuse of children in producing such pornography; and re-victimizing the
    subjects of the pornography by subjecting them to the sexualized gaze of the
    viewer:
R v. Sharpe
, 2001 SCC 2, [2001] 1
    S.C.R. 45, at paras. 86-92, 103.

[52]

In this case, the trial judge was satisfied
    beyond a reasonable doubt that the appellant did not, from a subjective
    standpoint, have a genuine, good faith reason related to art for accessing and
    possessing the child pornography, for several reasons: the issues with the
    appellants credibility; the limited corroboration of the appellants stated
    purpose; and the appellants stated fascination and morbid curiosity with the
    material. It was open to the trial judge to find that, even if the appellant
    may have had a subjectively genuine, good faith reason related to art for
    accessing and possessing child pornography at the outset, that reason was later
    supplanted and his continued accessing and possessing the child pornography was
    for the illegitimate purpose of satisfying his fascination and morbid curiosity
    with the material. I see no basis to interfere with this conclusion.

[53]

The fourth and fifth alleged errors arise out of
    further findings made by the trial judge
after
he
    made a general finding that the Crown had established beyond a reasonable doubt
    that s. 163.1(6) had not been satisfied. I have concluded there is no basis to
    interfere with that finding. Accordingly, even if the trial judge made the
    errors alleged (and, as I explain below, in my view he did not), they would not
    alter the result on this appeal.

[54]

As to the fourth alleged error, reading the appellants
    statement as a whole, I am not persuaded that the trial judge misapprehended
    the appellants evidence regarding his interest in bestiality.

[55]

The first reference to bestiality in the
    appellants statement is the following:

D/Cst. Mulholland: I mean when youre starting
    to access this stuff and the girls are starting to get to be a little bit
    older, is it start, starting to get to be enjoyable? Im gonna guess, yes.
    Dont, dont shit me now.

[The appellant]: Um no thats  doesnt turn
    my crank to be honest with you. You wanna know what turns my crank. Bestiality.
Youll find it on the damn thing.
[Emphasis
    added.]

[56]

Soon thereafter, a further exchange takes place:

D/Cst. Mulholland: Okay. So youre ah  I mean
    were being honest man-to-man here. Your thing is more the bestiality thing?

[The appellant]: Yeah, like

D/Cst. Mulholland: What? Dog and Women and
    that kinda

[The appellant]:
Yeah.
    Dog and women
, yeah, yeah. [Emphasis added.]

[57]

The damn thing in the first excerpted exchange
    was one of the appellants computers, on which child pornography, including the
    video of the child engaging in sexual acts with a dog, was recovered.

[58]

The discussion up to this point in the interview
    had focused on the child pornography found on the appellants computers. The
    trial judge specifically referred to the appellants evidence about dogs and
    women and carefully described the appellants statement as demonstrating a
    personal interest in and attraction to sexual interactions between
females
and
    dogs, which is the very kind of sexual content displayed in this video
    (emphasis added): at para. 88. The appellant made his admission about
    bestiality before the interviewing officer, D/Cst. Mulholland, introduced the
    narrowing reference to women. It was not unreasonable for the trial judge to
    infer that the appellants interest in bestiality was broad and extended to
    females in the context of the discussion of bestiality in his statement.

[59]

Further, a forensic analysis of the appellants
    computers established that a file entitled 9 yr jenny suck little dog
    cock.mpg had been stored in the My Shared Folder of a program on one of the
    computers used to access child pornography.
[3]
The evidence at trial was that in order for a file to be stored in the My
    Shared Folder location, it must be actively downloaded by the user, not simply
    viewed online through the program following a search. The file name would also
    have been visible to the user at the time of download.

[60]

Based on the appellants statement that
    depictions of bestiality could be found on his computers, the fact that the
    video of the child engaged in a sexual act with a dog was recovered from one of
    his computers, and the forensic evidence led at trial, it was reasonable for
    the trial judge to infer that the appellant was aware of the video. It was also
    reasonable for the trial judge to conclude that the appellants subjective
    purpose in accessing and possessing the video was because of his personal
    interest in bestiality, not for a legitimate purpose related to art. The trial
    judge did not misapprehend the evidence in this regard.

[61]

Similarly, I reject that there is any
    significance to the fact that the video of the child engaged in sexual acts
    with the dog did not include acts of penetration. The appellant is not legally
    trained. Lay definitions of bestiality are broader than the definition employed
    by the Supreme Court in
D.L.W.
, upon which the appellant
    relies, in de
fining the essential elements of the offence
    bestiality under the
Criminal Code.

[62]

Fifth, comics are themselves a form of artistic
    expression, and often the domain of fantasy. In assessing the credibility of
    the appellants stated purpose, it was not unreasonable for the trial judge to
    question how they would assist the appellant in his search for understanding of
    the real-life power dynamics and manipulation employed in the sexual abuse of
    children.

[63]

Concluding, as I do, that there is no basis to
    interfere with the trial judges finding that the appellant did not have a subjectively
    genuine, good faith reason related to art to possess and access the subject
    child pornography, it is unnecessary to address the appellants argument that
    the trial judge erred in finding that that the appellants action in possessing
    and viewing the child pornography cannot be objectively linked to his stated
    purpose.

disposition

[64]

I would dismiss the appeal.

Released: AH NOV 20 2018

Alexandra Hoy
    A.C.J.O.

I agree. David Watt
    J.A.

I agree. Edward Then
    J. (
ad hoc
)





[1]

The appellant narrowed his arguments at the oral hearing of
    the appeal.



[2]

While leave to appeal to the Supreme Court was granted, the
    appellant ultimately discontinued the appeal.



[3]

The forensic evidence could not directly establish that the
    video of the child engaged in sexual acts with a dog was the

9 yr jenny suck
    little dog cock.mpg file. Nor could the forensic evidence establish that the
    appellant had viewed the video of the child engaged in sexual acts with a dog.
    But neither the offence of accessing child pornography, nor the offence of
    possession of child pornography, require the accused to actually view the
    subject pornography:
R v. Chalk
, 2007 ONCA 815, 88 O.R. (3d) 448, at
    paras. 17-20;
Criminal Code
, s. 163.1(4.1)-(4.2).


