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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
. . .
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
. . .
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.
CITATION: R. v. Dabrowski, 2007 ONCA 619 |
DATE: 20070913 |
DOCKET: C45039 |
COURT OF APPEAL FOR ONTARIO |
DOHERTY, FELDMAN and MACPHERSON JJ.A. |
BETWEEN: |
HER MAJESTY THE QUEEN |
Appellant |
and |
DOBIESLAW DABROWSKI |
Respondent |
Jennifer Woollcombe for the appellant |
Craig McLean for the respondent |
Heard: July 6, 2007 |
On appeal from the conviction by Justice Lynn Leitch of the Superior Court of Justice dated February 22, 2006. |
MACPHERSON J.A. |
[1] The respondent, Dobieslaw Dabrowski, was charged with committing five criminal offences – uttering a threat by telephone contrary to s. 264.1(2) of the Criminal Code; criminal harassment (s. 264(3)); and making, possessing and distributing child pornography, in the form of a videotape (s. 163.1(2), (4) and (3)). All of the charges related to a relationship the respondent had with a young schoolgirl.
[2] Following a one‑week trial in which the respondent and the complainant both testified, the trial judge, Leitch J. acquitted the respondent on all charges. The Crown appeals the acquittals on only two of the charges – possession and distribution of child pornography.
[3] The respondent had a four or five month relationship with a schoolgirl in 2004. She was fourteen years old at the time. The respondent was twenty‑eight, although he lied to his young partner, saying he was nineteen.
[4] The relationship quickly became sexual. The partners decided to videotape some of the sexual activity. Sometimes they were alone when the filming took place; on other occasions, some of the respondent’s young male friends were present during the filming.
[5] After several months, the relationship ended. The respondent gave the videotapes to one of his young friends for ‘safekeeping’. Eventually, the complainant’s family found out about the tapes and the complainant went to the police.
[6] The respondent was charged with five offences, three relating to the tapes and two relating to the threats the respondent allegedly made to the complainant after their break‑up.
[7] The trial judge acquitted the respondent on all charges. With respect to the three pornography charges, she reviewed the wording of s. 163.1 of the Criminal Code. She then turned to a consideration of the decision of the Supreme Court of Canada in R. v. Sharpe (2001), 150 C.C.C. (3d) 321, which created two exceptions to the offences prescribed therein. McLachlin C.J.C. described the second exception in this fashion at paras. 75 and 76:
Yet problems remain. The interpretation of the legislation suggested above reveals that the law may catch some material that particularly engages the value of self‑fulfilment and poses little or no risk of harm to children.
. . .
The second class of material concerns privately created visual recording of lawful sexual activity made by or depicting the person in possession and intended only for private use. Sexually explicit photographs taken by a teenager of him- or herself, and kept entirely in private, would fall within this class of materials. Another example would be a teenaged couple’s private photographs of themselves engaged in lawful sexual activity. Possession of such materials may implicate the values of self‑fulfilment and self‑actualization, and therefore…reside near the heart of the [Charter] s. 2(b) guarantee…[T]his material poses little risk of harm to children. It is privately created and intended only for personal use. It depicts only lawful sexual activity. [Emphasis added.]
[8] The trial judge determined that, in spite of alcohol consumption, the complainant had the capacity to consent to engage in the sexual activity that was filmed. She further held that the complainant did consent to the activity.
[9] On the “private use” component of the second Sharpe exception, the trial judge reasoned:
The Crown submits that by the very fact that the tapes were given to Sean Forde, Mr. Dabrowski has made them available to another person which causes the tapes to fall outside the Sharpe exception. In my view the requirement that the tapes be created for private use does not mean that the tapes have to remain in the creator’s actual possession. As set out in s. 4(3) of the Criminal Code, possession may be actual or it may be attributed by operation of law in the three circumstances set out in s. 483(a)(ii). Specifically, a person is in possession of an item when he knowingly has it in the actual custody or possession of another. The item is therefore in the actual possession of one person and attributed to the other.
There was no evidence that the tapes were made available or put in public viewing. The only evidence is that they were given to someone for safe keeping who did not watch them, who was asked not to watch them or show them to anyone, who did not have a camera to play them on, or copy them and who hid them. The fact that the tapes were not erased is evidence I have considered, but that evidence in the context of the other evidence I have outlined is not sufficient to satisfy me that the tapes were not created for private use. I am not satisfied that the video tapes were created or possessed with anything other than the intention for personal use.
[10] The Crown does not appeal the acquittals on the uttering a threat, criminal harassment or making child pornography charges.
[11] The Crown does appeal the acquittals on the possession and distribution of child pornography charges. Although it does not contest the trial judge’s conclusions on the consent issue, relating to both capacity and the fact of consent, the Crown challenges the trial judge’s conclusion on the “private use” component of the second exception in Sharpe. The Crown’s challenge is two‑pronged: (1) the trial judge’s interpretation of “private use” is too expansive – the Sharpe exception does not reach this case where this respondent gave the tapes to a young friend; and (2) the trial judge did not resolve a crucial factual question, namely, whether the respondent threatened to show the videos to the complainant’s family and friends if she did not comply with his rules in certain areas.
[12] The Crown submits that if it is successful on the first ground of appeal, the appropriate remedy is that this court enter convictions on the possession and distribution charges; if it is successful on only the second ground of appeal, the proper disposition is an order for a new trial.
[13] The Crown frames the issues in this fashion:
(1) The trial judge erred in concluding that the respondent’s possession of the videotapes fell within the second exception to s. 163.1 in Sharpe, having regard to the fact that he gave the tapes to Sean Forde; and
(2) The trial judge erred in failing to appreciate that the respondent’s threats to show the videotapes to the complainant’s family and friends rendered the second Sharpe exception unavailable.
[14] In my view, this appeal can, and should, be resolved on the basis of the second issue.
[15] The issue of the respondent’s alleged threats directed towards the complainant was, of course, central to the first two charges in the indictment, uttering a threat and criminal harassment.
[16] The substance of the complainant’s allegations giving rise to these charges was that the respondent had threatened, if the complainant did not obey his rules, to get someone to slice her breasts and her face so that other men would not be interested in her. He underlined this threat by telling the complainant that he had arranged with other girls to stab his former girlfriend when she disobeyed him.
[17] The trial judge dealt with these alleged threats in a detailed fashion. Although she rejected the respondent’s testimony and found the complainant’s testimony credible on many issues, the trial judge doubted her testimony about the threats of potential physical harm:
I am not satisfied beyond a reasonable doubt that the Crown has proved the essential elements of count one and count two as described above. Threats of the nature described by [the complainant] are not consistent with her evidence that their break up was mutual. Her evidence regarding the threats and harassment is inconsistent with her evidence that she still cared for him and had feelings for him. I do not accept the Crown’s submissions that this relationship should be assessed as one would an ongoing violent domestic relationship. Her e-mails are inconsistent with her being threatened and harassed. Her repeated contact with him is inconsistent with her being threatened and harassed. Her explanation that she sent the e-mails and contacted him to stay on his good side is not credible when she testified at the same time she believed that he would act on his threats.
Accordingly, the trial judge acquitted the respondent on the uttering a threat and criminal harassment charges.
[18] An allegation that the respondent threatened the complainant about use of the videotapes was an important, but not the central, issue on the three pornography charges. In her oral reasons, the trial judge described the complainant’s testimony about these threats:
She testified that after they broke-up Mr. Dabrowski told her that if she didn’t follow his rules, such as not going to basketball games, or all ages clubs, he would show the videos to her family and friends or put them on a website, and he said that more than once, but not as often as the other threats I have described. She said she believed him and it scared her because she didn’t want anyone else to see them.
[19] Unfortunately, in reasons that are otherwise comprehensive and clear, the trial judge said nothing more about these alleged threats.
[20] The respondent submits that this omission is of no consequence. He points to the fact that the evidence relating to threats of physical harm to the complainant and threats to show the videotapes to others was often linked during the trial. For example, in the re‑examination the complainant testified:
Q. Okay. And when you say, “So that nothing would happen”, what were you concerned might happen?
A. That the threats suddenly would, he would follow through with them.
Q. Okay. And, specifically, which threats?
A. About him showing the videotapes to my friends and family and making a website or getting me cut up or beat up.
The respondent submits that, in light of this linkage, it can be presumed that the trial judge’s explicit rejection of the complainant’s testimony concerning the threats of physical harm can and should be extended into an implicit rejection of her testimony about the threats of showing the videos to others.
[21] I acknowledge that there is merit in this submission. However, in the end I cannot accept it for several reasons.
[22] First, in my view there is a significant difference in the nature of the two categories of alleged threats. A threat to get third parties to physically harm a partner in a relationship and a threat to show a videotape of consensual sexual activity to third parties are quite different threats. I do not think that a detailed analysis of, and clear conclusion relating to, the former should lightly be extended to the latter.
[23] Second, the trial judge comprehensively and emphatically rejected the respondent’s testimony. On the other hand, she found much of the complainant’s testimony to be credible, although she rejected her testimony relating to the alleged physical threats. In light of this combination of credibility assessments, again I hesitate to imply that the trial judge reached a firm conclusion about the second category of alleged threats.
[24] Third, whether the threats about showing the videotapes to others were actually made is, in my view, a crucial fact in terms of the legal analysis of s. 163.1 of the Code. This is clear from what McLachlin C.J.C. said in Sharpe at para. 118:
I reiterate that the protection afforded by this exception would extend no further than to materials intended solely for private use. If materials were show to be held with any intention other than for personal use, their possession would then fall outside the exception’s aegis and be subject to the full force of s. 163.1(4). Indeed, such possession might also run afoul of the manufacturing and distributing offences set out in s-ss. 163.1(2) and 163.1(3).
[25] For these reasons, I conclude that the trial judge did not make a finding about whether the respondent threatened to show the videotapes to the complainant’s family and friends.
[26] The respondent contends that the absence of a finding by the trial judge on the threat issue is not a fatal omission because the trial judge acquitted him on a different basis, namely, her interpretation of the “private use” component of the second exception in Sharpe.
[27] I do not accept this submission. In my view, the threat issue is, factually, at the heart of this case and has to be considered along with all of the evidence of the actions of the respondent in order to determine whether the “private use” exception applies in this case. Accordingly, the trial judge should have resolved it so that the required legal analysis could have taken place against the backdrop of findings on all of the important factual circumstances.
[28] It follows that a new trial will be necessary. To assist the judge presiding at the new trial, I make this observation. In this appeal, the Crown submitted that there should be what I would call a ‘bright line’ definition of the “private use” exception: “[P]ossession must mean physical possession, and must be exclusive possession to the extent that it includes only those with a legal right to possess the material….There is no justifiable reason for permitting an individual to ‘share’ possession of the material with anyone else for any reason.” (Crown factum, paras. 50 and 51).
[29] The trial judge rejected this ‘bright line’ submission. In my view, she was right. Although the “private use” exception should be applied with genuine caution, it goes too far to equate it in an absolute fashion with exclusive possession. Such an equation would render unlawful such activities as placing these videotapes in a safety deposit box or turning them over to a lawyer or other trusted person for safekeeping.
[30] In my view, there is an evidentiary connection between holding relevant material in ‘strict privacy’ and maintaining exclusive possession. It is a factual question whether giving up exclusive possession results in a loss of strict privacy. Each case must be assessed on its own facts. Questions such as to whom was the material given, what was the purpose or reason for the transfer, what terms or conditions were agreed upon when the material was given up, what control did the accused maintain over the material, was the material in fact viewed by anyone other than the consensual participants, would be relevant, all in the context of the credibility of the accused and others.
[31] I would allow the appeal and order a new trial on the charges of possession and distribution of pornography. The acquittals on the other three charges stand.
RELEASED: September 13, 2007 (“DD”)
“J.C. MacPherson J.A.”
“I agree Doherty J.A.”
“I agree K. Feldman J.A.”