DATE: 20030620
DOCKET: C31440

COURT OF APPEAL FOR ONTARIO

CARTHY, MOLDAVER and FELDMAN JJ.A.

On appeal from convictions by Justice G. N. Glaude of the Ontario Court of Justice on January 9, 1997 and on appeal from sentence imposed on October 23, 1997.

FELDMAN J.A.:

[1] On January 7, 1997, the appellant was convicted of 26 counts of sexual offences involving children, including 2 counts of sexual assault, as well as 8 counts of possession of child pornography. Following a hearing, the appellant was designated a dangerous offender and sentenced to an indeterminate sentence in respect of the two counts of sexual assault. He was sentenced to a concurrent term of 12 years and two months in respect of the other counts. The appellant appeals his conviction on three of the counts of possession of child pornography and one count of sexual exploitation and appeals all aspects of his sentence.

[2] Because the Supreme Court of Canada is currently considering the dangerous offender provisions of the Criminal Code in five cases on appeal from the British Columbia Court of Appeal (R. v. Johnson, [2001] S.C.C.A. No. 650; R. v. Kelly, [2002] S.C.C.A. No. 152; R. v. Edgar, [2001] S.C.C.A. No. 654; R. v. S.K.M., [2002] S.C.C.A. No. 92; R. v. Smith, [2002] S.C.C.A. No. 49), it was agreed that the sentence portion of the appeal would be adjourned and that this panel would proceed only with the conviction appeal.

[3] With respect to count 21, sexual exploitation of J.M., the Crown concedes that the verdict is unreasonable, the conviction must be quashed and an acquittal entered as the victim was 9 or 10 years old at the time and therefore not a "young person" as defined in s. 153(2) of the Criminal Code (between 14 and 18 years).

FACTS

[4] When the police searched the appellant's home, they found slides and film, the subject of four of the charges for possession of child pornography, and four pieces of written material, described in the information as three "pocket novels": Toward a Perspective for Boy-Lovers (count 37), Vice Versa (count 38), and The Asbestos Diary (count 39), and one "newspaper publication": The Body Politic (count 42). The appeal relates only to two novels and the newspaper article, counts 38, 39 and 42. No appeal was brought in respect of Toward a Perspective for Boy-Lovers, which was found by the trial judge to amount to "nothing less than a 'how to' reference book for men who wish to engage in sexual activity with young boys."

THE TRIAL JUDGE'S FINDINGS AND APPROACH

[5] This trial took place and reasons for judgment were delivered on January 9, 1997, well before the Supreme Court of Canada heard argument and released its reasons in R. v. Sharpe, [2001] 1 S.C.R. 45, where the court explained the constitutional ambit and scope as well as the operation of s. 163.1, the child pornography section of the Criminal Code.

[6] The trial judge therefore made his findings without the guidance of the Supreme Court as to the meaning of certain of the provisions of s. 163.1, its proper operation, and the process to be used by a trier of fact in adjudicating the issues raised by the section and in applying the burden of proof.

[7] Section 163.1 of the Code provides 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,

(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

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).

[8] After finding that the appellant knowingly possessed the impugned material, the trial judge dealt with the defences set out in s. 163.1(6): artistic merit, or educational, scientific or medical purpose. He referred to the defences as lawful justification or excuse, and made the following finding:

I am of the view that no doubt has been raised with respect to lawful justification, no defence of artistic merit, or educational, or a scientific or medical purpose has been presented.

In my view, if the Crown is able to satisfy this court beyond a reasonable doubt that the documents in question are pornographic, the failure of the accused to testify leaves it open to the court to draw an inference that no legal justification exists.

In the circumstances of this case, I draw that inference.

[9] The trial judge then turned to what he referred to as "the only real issue" in the case, to determine whether the Crown had satisfied the court beyond a reasonable doubt that the materials are child pornography. The Crown's position was that the impugned materials advocated or counselled sexual activity with a person under 18 and relied on s. 163.1(b). The Crown led expert evidence from Detective Constable Goldschmidt, an officer who had been dealing with obscenity investigations since 1991 and in that context had viewed tens of thousands of videos, thousands of magazines, and several hundred books. His opinion was that the four impugned books were pornography.

[10] The two novels, The Asbestos Diary and Vice Versa, were written by one author, Casimir Dukahz. The Asbestos Diary was published in 1966 and Vice Versa was printed in 1976. Each has a Library of Congress catalogue number. The trial judge described both as containing "vignettes of sexual episodes between an adult and a boy, ranging in the age of twelve to eighteen years." The expert witness's opinion was that both counselled or advocated sexual activity with a person under 18. The trial judge concluded that "all of these vignettes have, as a purpose, to legitimize and to encourage this type of sexual activity between adults and young boys." The trial judge recognized the artistry of the works, but concluded that their net effect was to encourage and thus advocate the illegal activity.

[11] The Body Politic was a newspaper which contained an article "Men Loving Boys Loving Men" first published in 1977, before the new child pornography legislation was proclaimed, and was the subject of obscenity charges and acquittals at the time. The article was reprinted in 1979. The trial judge found that the author of the article was advocating changes to the legislation prohibiting sexual activity between men and boys by using detailed accounts of such activity. Detective Goldschmidt noted that the article did not point out the possibility of harm to the young boys from the sexual activity but rather said that sexual contact would benefit them, and that it is the laws that are harmful. The trial judge agreed with the expert that this article fell within s. 163.1(b). He said:

I am unable to disagree with that view. In the end, the author's wish to advocate for changes in the legislation takes a back seat to his advocating ongoing sexual relations between men and young boys, which, given the proclamation of the pornography legislation in the 1990's, falls within that new law, and accordingly I find the accused guilty of possession of this pornographic material contained in count 42.

ISSUES AND ANALYSIS

[12] The appellant says that in light of the Sharpe decision, the trial judge erred in three ways: (i) by relying on the expert opinion in finding that the material was child pornography; (ii) by applying the wrong test; and (iii) by failing to properly consider the availability of the defences.

[13] In Sharpe, the Supreme Court set out the tests for the application of the subsections of s. 163.1 and the meaning to be given to those subsections. For the purpose of this case, the following explanations and interpretations by the Supreme Court are relevant and applicable:

(1) "…Parliament's goal was to prohibit possession of child pornography that poses a reasoned risk of harm to children. The primary definition of 'child pornography' does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material. Additionally, the defences exempt classes of material raising special free expression concerns. In this way, Parliament has attempted to meet the dual concerns of protecting children and protecting free speech." (para. 74).

(2) Courts must take an objective approach to determining whether material falls within the definition of child pornography based on what a reasonable person would conclude. In the context of impugned written material, this means that the terms "advocates" and "counsels" in ss. (1)(b) require that "the material, viewed objectively, must be seen as 'actively inducing' or encouraging the described offences with children." It is not enough for the material to describe the criminal act. It must "send the message that sex with children can and should be pursued." (para. 56).

(3) The offence is committed only when what is advocated is a criminal offence. Certain consensual acts with persons under 18 but over 13, or in some cases 14, do not constitute an offence. (See ss. 151, 152, 153 of the Code.)

(4) The statutory defences are to be liberally interpreted. The defence of artistic merit is very broad and includes "any expression that may reasonably be viewed as art"(para. 63). The New Shorter Oxford English Dictionary on Historical Principles (1993) vol. 1, p.120 definition of "art" includes "the production according to aesthetic principles, of works of the imagination, imitation or design." The determination of what is "art" is to be made by the trial judge on the basis of a variety of factors including the subjective intention of the creator, the form and content of the work, its connections with artistic conventions, traditions or styles, the opinion of experts, and the mode of production, display and distribution. The factors will be refined as the case law develops (para. 64). The defence is not limited to good art or to talented or experienced artists (para. 63).

(5) The artistic merit defence does not operate on the same criteria for child pornography as for obscenity (s. 163). Consequently, there is no internal necessity aspect to the defence for child pornography, that is, that the sexual aspect must be essential to a wider artistic purpose. There is also no qualification on the artistic merit defence which would import a requirement that the work must comport with community standards of tolerance in the sense of not posing a risk of harm to children (paras. 65 and 67).

(6) Procedurally, the test for the defence of artistic merit is objective. It functions in the same manner as other defences such as self-defence, provocation or necessity. Once the accused raises the defence, the Crown must disprove it beyond a reasonable doubt. The accused raises the defence by pointing to facts capable of supporting it. This will generally be something more than just an assertion of the subjective intent of the creator (para. 66). However, there is no suggestion that an accused is required to testify in order to raise the defence.

[14] In my view, it is clear that without the benefit of the Sharpe decision, the trial judge in this case did not approach the analysis of determining whether the impugned material is child pornography, whether the defence of artistic merit applies, or the proper onus of proof in respect of raising and disproving the defence, in accordance with the law.

[15] First, the trial judge appears to have discounted the availability of the defence of artistic merit on the basis that the appellant did not testify. Consequently, having concluded that the defence was not raised, he did not put the onus on the Crown to disprove it. The result is particularly incongruous because the trial judge made certain observations when describing the impugned material which suggest artistic merit and therefore raise the defence. For example, when discussing The Asbestos Diary and Vice Versa, the trial judge describes the language as "flowery", says that the author "masters the English language" and refers to the author as "a modern day Chaucer in that he describes the vilest sexual acts in a quiet poetic way." And further on: "I am mindful that, to a certain degree, there is a type of artistry, warped as it is, to the delivery of these vignettes…."

[16] Second, the trial judge accepted the expert's definition of child pornography as material that counsels or advocates sexual activity with a person under 18. This represents too broad an approach, as there must be the advocacy of an offence, which requires further analysis of the age of the child involved, if the child is over 13 as described in paragraph [13](2) and (3) above. This error may have no significance, however, because the trial judge described the material as relating to boys ranging from 12 to 18 years.

[17] Third, it is not clear that the trial judge considered and applied the terms "advocate" and "counsel" in the strict and purposive way prescribed by the Supreme Court.

CONCLUSION

[18] In my view, without the benefit of the Supreme Court decision in Sharpe, the trial judge in this case did not properly analyze and address the issues raised in the application of s. 163.1 in accordance with the principles and interpretative directions set out in that decision. Most significantly, the trial judge did not properly consider the availability of the defence of artistic merit as it has been explained by the Supreme Court.

[19] I would therefore allow the appeal, set aside the convictions, and order a new trial on counts 38, 39 and 42. The appellant suggested that the matter need not be retried but that this court could decide it based upon the principles set out in Sharpe and on the existing record. In my view that approach would not be appropriate. As indicated, the law has been significantly clarified both substantially and procedurally by the Supreme Court in Sharpe. The evidence led at trial and the trial judge's findings are based on a different model. A new trial is required in which the trial judge can assess the case on the basis of evidence that is both relevant and admissible having regard to the principles set forth in Sharpe. In respect of count 21,

[20] I would allow the appeal and enter an acquittal.

Signed: "K. Feldman J.A."
"I agree J.J. Carthy J.A."
"I agree M. Moldaver J.A."

RELEASED: ""JJC"JUNE 20, 2003