Updated: Dec 20, 2020
Richard McSween was charged with making child pornography, distributing child pornography, and child luring, contrary to ss. 163.1(2), 163.1(3), and 172.1 of the Criminal Code.
The allegations made against the respondent were due to communication that occurred between the respondent and a 14-year-old boy, J.V. via text messaging. The messages contained sexual content about J.V.’s friend, N.B., another 14-year-old boy. The respondent came to know the boys as he was a friend of N.B.’s older brother and eventually became more involved with them through their local hockey team and by taking them out for different activities. He paid for all of these activities and also bought gifts for N.B. often. The boys also slept over at the respondent’s apartment occasionally.
The first sexual comments made by the respondent discussed giving N.B. a “hand job” in exchange for $200 with J.V. In the second interaction, the respondent repeatedly asked J.V. to send him a picture of N.B.’s penis. In the third exchange, the respondent told J.V. that he loved N.B. and that N.B. should let the respondent play with his penis given everything he had done for him (pay for expenses, gifts, etc.).
The respondent was arrested when J.V.’s mother discovered the text messages and reported the matter to police. The respondent claimed that he was joking in the sexual interactions above. The trial judge acquitted the respondent on all counts. The Crown appeals the acquittals on the grounds that the trial judge erred in his interpretation of what the child pornography and child luring provisions are under the Criminal Code.
Did the trial judge make legal errors in the following?
(1) His finding that the respondent lacked the intent required for the offence under s. 163.1(2) and (3).
(2) His interpretation of the definitions of child pornography under s. 163.1(1)(b) and (c).
(3) His use of the defences in s. 163.1(6) to give legal effect to the respondent’s claim that his messages were sent as jokes.
(4) His lack of focus on the concepts of “facilitating” as a fault requirement under s. 172.1 and requiring the Crown to prove that the respondent had a “sexual purpose”.
It was found that the trial judge made legal errors in relation to ss. 163.1 and 172.1. The appeal was allowed, the acquittals were set aside, and a new trial was ordered on all counts.
In its analysis of the child pornography charges, the court referred to the definition of child pornography in s. 163.1(1)(b)(c) and the offences outlined in s. 163.1(2) and (3), all of which are as follows:
163.1 (b) any written material, visual representation or audio recording that promotes or suggests sexual activity with a person under the age of 18 years is an offence under this Act;
(c) any written material whose dominant characteristic (main feature) is the description of sexual activity for a sexual purpose with a person under the age of 18 years is an offence under this Act.
163.1(2) Every person who makes, prints, publishes or possesses (for publication) any child pornography is guilty of an offence and can face imprisonment for more than 14 years and a minimum punishment of imprisonment for one year.
163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an offence and can face imprisonment for a term of not more than 14 years and a minimum punishment of one year.
Child Pornography Charges
(a) Communication via Text Messages as Child Pornography
In order to appeal the acquittal on the child pornography charges, the court had to determine whether the text message communications that occurred fell under “written material”. The Court rejected the argument that “written material” is only found in books or journals as was seen in R v Sharpe, 2001 SCC 2 and stated that the wording of the legislation supports the inclusion of emails, text messages, or other forms of electronic communication in “written material”. This interpretation was also found to be consistent with the decisions of lower courts, and Parliament’s goal in making the legislation, which was to protect children from harm.
(i) “Advocates or counsels sexual activity” – s. 163.1(1)(b)
The next question to consider was whether or not the text messages advocated or promoted sexual activity with a child when viewed objectively. During one interaction, the respondent told J.V., “U know after all I do for him he should let me play with his dick, eh”. The trial judge did not consider whether, when viewed objectively, these communications encouraged sexual activity between the respondent and N.B.
(ii) “Dominant characteristic is the description, for a sexual purpose, of sexual activity” – s. 163.1(1)(c)
In his analysis, the trial judge stated that since only 36 out of 4000 pages of text messages were of a sexual nature, the “dominant characteristic” or main feature of the interactions was not sexual. This Court disagreed and stated that the trial judge should have focused only on the content of the text messages in question, and not all of the interactions that had ever occurred between the respondent and J.V. If the trial judge’s reasoning were adopted, it would mean that one sexualized photo of a child in an otherwise normal family album is acceptable since it is only one photo out of many. This would be inconsistent with Parliament’s intent to protect children from sexual predators.
(b) Mental Element Requirement for Child Pornography Offences
The Crown claims that the trial judge confused intent and motive when he failed to find the respondent’s intent to commit the offences. When the respondent stated that he was merely joking with the boys, his statement suggests that he lacked a motive, but not the intent. The common law does not require the Crown to prove motives or purposes. To charge someone with making and distributing pornography, the Crown is only required to prove that the accused intended to compose written materials, had knowledge of their sexual nature, and intended to send them to someone under the age of 18. This was proven when the respondent acknowledged that he sent the text messages in question.
Child Luring Charges
(a) Facilitating the Commission of an Offence
The respondent was also acquitted of child luring charges under s. 172.1, which states that anyone who communicates (via telecommunication) with someone who is a minor, or who the accused thinks is a minor in order to promote committing an offence with them, is guilty. Although the respondent did not literally “lure” or encourage the child to meet with him somewhere, the context of the communication that occurred via a telecommunications device explicitly suggests that he wanted to have sex with the child and is thus criminalized under s. 172.1.
(b) Sexual Purpose
The trial judge held that the Crown had to prove that the “luring” was done for a sexual purpose, however, this is incorrect. The wording of s. 172.1 does not mention “for a sexual purpose” anywhere. Additionally, in multiple cases, the Supreme Court of Canada has held that sexual gratification may not be the only goal of child luring, other potential motives may include bullying, blackmail, or financial gain.
Despite the trial judge’s error in analyzing s. 172.1, the Crown acknowledges that it is not clear whether the evidence presented at trial establishes the respondent’s guilt in child luring. Hence, a new trial was ordered.
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