R. v. Keough, 2011 ABQB 48
b. R. v. Sharpe Private Use Exception - Third Parties
[267] The question then is whether Keough's possession falls under some aspect of the R. v. Sharpe private use exception. I believe it does not, though my conclusion requires I first examine another facet of that exception.
i) A records A for A,
ii) B records A for A or B,
iii) A or B records A and B for A or B, or
iv) C records A and B for A, B, or C.
[269] What the exception does not explicitly identify is the following:
i) A records A for B, or
ii) A or B records A and B for C.
[270] Earlier I observed that in R. v. Bono, Justice DiTomaso expressly rejected any application of the R. v. Sharpe private use exception to the “A records A for B” type scenario. Here, we may arguably face an “A or B records A and B for C” type arrangement.
[271] I disagree with the R. v. Bono interpretation of the R. v. Sharpe private use exception, and I do think it is possible in certain instances that the exception may apply to a “A records A for B” or “A or B records A and B for C” situation.
[272] First, there is the character of the R. v. Sharpe private use rule. That decision created a ‘hole’ in the scheme of Criminal Code, s 163.1, what the Supreme Court of Canada has called a “constitutional exemption”. In the recent decision of R. v. Ferguson, 2008 SCC 6 at para. 50, [2008] 1 S.C.R. 96, Chief Justice McLachlin described exemptions in this manner:
... the effect of granting a constitutional exemption would be to so change the legislation as to create something different in nature from what Parliament intended.
[273] The R. v. Sharpe private use rule is a constitutional remedy, made available by the manner in which Criminal Code, ss. 163.1(2) and 163.1(4) interfere with Charter, s. 2(b) and 7 rights. In R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595 at 641, 89 N.R. 161, Wilson J. explained how Charter remedies should operate:
A purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpretation of Charter rights ... I agree with the general proposition reflected in these cases that Charter relief should not be denied or "displaced by overly rigid rules": see Swan, at p. 148. [Emphasis added.]
[274] The Supreme Court of Canada has returned to this theme in subsequent constitutional analyses. For example, in Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 23, [2003] 3 S.C.R. 3, the majority stated the purposive approach provides for responsive and effective remedies.
Purposive interpretation means that remedies provisions must be interpreted in a way that provides “a full, effective and meaningful remedy for Charter violations” since “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach” (Dunedin, supra, at paras. 19‑20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies. [Emphasis added.]
[275] What then is the purpose of the R. v. Sharpe private use exception? McLachlin C.J.C. at para. 109 described what the exception promotes:
The same concerns arise in relation to auto‑depictions; that is, visual recordings made by a person of him‑ or herself alone, held privately and intended only for personal use. Again, such materials may be of significance to adolescent self‑fulfilment, self‑actualization and sexual exploration and identity. Similar considerations apply where the creator of the recordings is not the sole subject; that is, where lawful sexual acts are documented in a visual recording, such as photographs or a videotape, and held privately by the participants exclusively for their own private use. Such materials could conceivably reinforce healthy sexual relationships and self‑actualization. For example, two adolescents might arguably deepen a loving and respectful relationship through erotic pictures of themselves engaged in sexual activity. ... [Emphasis added.]
[276] It would seem very strange that an adolescent’s healthy sexual relationship and self actualization would not be reinforced by that adolescent making sexual recordings of themself, and then sharing those with their partner. That, of course, is the “A records A for B” scenario which was expressly rejected in R. v. Bono. I conclude that to interpret the R. v. Sharpe private use exception to exclude that category of material possession and transfer would deny effective Charter relief by taking an “overly restrictive interpretation” of the scope of the private use exception identified in R. v. Sharpe.
[277] I also do not believe this is a purely theoretical exercise. Rather, the more narrow interpretation may result in the criminalization of conduct which I think can “... reinforce healthy sexual relationships and self‑actualization ...”. I take judicial notice that the kind of technology available to young persons today provides an unprecedented ability for young persons to record themselves privately and then share those recordings. A young woman may take a topless photo of herself on her cell phone and then send that to her boyfriend. Inside that kind of context I think the R. v. Sharpe private use exception could and should apply.
[278] I see no principled reason why the same would not be true where “A or B records A and B for C” situation.
c. Distribution of Private Use Materials
[279] In coming to that conclusion I am aware that an A records A for B scenario and its analogues implicitly requires distribution of private use materials. Distribution of child pornography is a criminal offense: Criminal Code, s. 163.1(3). Further, I am aware that in R. v. Sharpe at para. 128 McLachlin C.J.C. does not include s. 163.1(3) as a provision that may potentially be subject to the R. v. Sharpe exceptions.
[280] However, I note that at para. 118, Chief Justice McLachlin says that the distribution offense may not apply where materials were for private use:
… If materials where shown 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 ss. 163.1(2) and 163.1(3). [Emphasis added.]
[281] Further, I observe that distribution is implicitly a part of the R. v. Sharpe private use exception. The majority R. v. Sharpe judgment describes both participants and the recorder of a private use material as ‘owners’ of that private use material. All may lawfully possess that material. But, if one person records a private use material, then the participants can only obtain that private use material where the ‘recorder’ then ‘distributes’ the recording to the other observers.
[282] I therefore conclude that the R. v. Sharpe private use exception can potentially apply to the ‘distribution’ of child pornography materials. It seems to me that a useful approach to evaluate potentially exempt distribution is to assess the recipient of the transfer. If the recipient cannot legally possess the material, then the distribution activity cannot fall within the R. v. Sharpe private use exception.
d. Limits to Third Party Receipt of Private Use Materials
[283] I can see there are circumstances where the private use exception does not apply where a third party receives private use materials. The facts of this case neatly illustrate a number of these circumstances.
[284] To be clear, Keough is not an ‘owner’ of the J.W./C.V. recordings. He was not a participant in the recordings, nor is there any evidence he recorded the participants. He was, at best, the “C’ in an “A or B records A and B for C” scenario. On that point I also note there was no physical evidence or witness testimony to suggest that Keough was a sexual intimate with either or both members of this couple. The Defence did not argue Keough was an intimate of J.W. and C.V..
i. Consent by All ‘Owners’
[285] Pornographic materials cannot qualify for the R. v. Sharpe private use exception without consent; the private use exception cannot apply to a material that is transferred or shared without the consent of all its ‘owners’. That is precisely what I concluded happened with the S.C./M.A. recording. Even if M.A. had consented to Keough having or viewing that material, the transfer of that recording to Keough and his possession of that recording are subject to criminal sanctions as S.C. did not authorize either.
ii. Vitiated ‘Owner’ Consent
[286] If Keough had extorted or coerced the recordings from J.W. and/or C.V. I conclude that would also eliminate any potential private use immunity. At para. 116, Chief Justice McLachlin states private use material requires “… the consent of all parties …” and cannot involve “… the exploitation or abuse of children …”. DiTomaso J. in R. v. Bono at para. 24 concluded the private use exception is nullified by consent obtained by fraud, and cites R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, 162 D.L.R. (4th) 513. I agree, and that principle would also apply to a more direct mechanism such as extortion or coercion.
[287] If the testimony of J.W. and C.V. is to be believed, then the extortion or theft of their recordings would clearly mean Keough’s possession of those recordings fell outside the private use exception. However, I do not believe J.W. and C.V.’s testimony that Keough forced them to record their sexual activities.
iii. Loss of ‘Owner’ Control
[288] In R. v. Dabrowski, the Ontario Court of Appeal concluded that third party possession of private use materials may not fall outside the R. v. Sharpe private use exception when the ‘owners’ of the private use material still exerted effective control over the private use material. Relevant factors included:
1. the recipient of the material,
2. the purpose or reason for the transfer,
3. what the third party recipient was told were the criteria for the transfer,
4. the residual control of the ‘owners’ over the private use materials, and
5. whether the private use materials were viewed by anyone other than its ‘owners’.
[289] On the more general question of control, I would suggest effective control is lost when:
1. the private use materials are transferred or used in a manner not authorized by the third party, or
2. the ‘owners’ of the private use materials are unable to demand the return of the materials or their destruction.
[290] Arguably there is a possibility that Keough received the J.W./C.V. recordings for safekeeping, but any remaining control would seem to be tenuous, given the ‘owners’ had moved to Nova Scotia.
iv. Possession in Exchange for Consideration
[291] In both the S.C./M.A. and J.W./C.V. recording analyses I have concluded that I suspect the males provided the recordings of their sexual activities with their partners to Keough in exchange for some kind of consideration. The facts provide no basis to determine just what was received, it might be money, alcohol, drugs, or some kind of favours. In my opinion, the exact basis for an exchange that involves private use materials is in fact irrelevant.
[292] I do not believe the R. v. Sharpe private use exception should ever apply where a person pays to receive what would otherwise be private use materials that involve a young person. All transfers of material that records the sexual activities or intimacies of a person under age 18 in exchange for any consideration are exploitive and fall outside the private use exception. At para. 116 Chief Justice McLachlin states that the R. v. Sharpe private use exception does not apply to what would otherwise be child pornography which has been received or created in an exploitive or abusive manner. I conclude that any possession of private use materials in exchange for consideration is exploitive and abusive.
v. Conclusion - Third Party Possession of Private Use Materials
[293] In summary, I conclude that the R. v. Sharpe private use exception can potentially apply where a person is in possession of private use material, and that person is neither a participant in the recorded material or the person who recorded that material. This third party possession private use exception is always negated where possession is:
1. without the consent of all persons recorded,
2. obtained by fraud or deception,
3. a result of coercion, threat, or extortion,
4. results in the loss of control of the private use material,
5. in exchange for any form of consideration, or
6. otherwise exploitive or abusive.
[294] To perhaps state the obvious, I believe that generally non-exploitive or non-abusive transfer to a third party will occur where the recipient is in an intimate relationship with the person or persons who created and are depicted in the material that depicts sexual activity.
e. The R. v. Sharpe Private Use Exception is a Defence
[295] Another novel aspect of this judgment is that I believe this is the first reported decision that has required the courts investigate how the R. v. Sharpe private use exception should be applied and proven in a criminal matter. I conclude that exception operates as a defence.
[296] In R. v. Sharpe, Chief Justice McLachlin describes the statutory definition of child pornography as being overly broad. It “extends to” and “catches” (paras. 39-40) forms of expression in a manner that cannot be justified under Charter, s. 1 (paras. 82-110). She concludes at para. 126 that:
In my view, the appropriate remedy is to uphold the law in its broad application, while holding that it must not be applied to two categories of material, as described above: self‑created, privately held expressive materials and private recordings that do not depict unlawful sexual activity.
[297] “Defences” provided by Criminal Code, s. 163.1(6) are evaluated and described separately: paras. 60-71, 128.
[298] As described in that way, it would seem that the private use exceptions are ‘read into’ the definition of child pornography in Criminal Code, s. 163.1(1). That creates what might be described as an ‘operational’ issue. The Crown would be required to prove that the R. v. Sharpe private use exception does not apply to what would otherwise be child pornography.
[299] For example, the Crown may have a video recording of an accused engaged in sexual activities with an unidentified person who appears to potentially be between the ages of 14 and 18, and without any hint as to the circumstances in which that material was created. The same would be true of any other material that recorded or portrayed a young person who might fall within that age range. How can the Crown prove any of those materials did not fall into the R. v. Sharpe private use category?
[300] I think the simple solution is that the Crown has the onus to prove the elements of possession of child pornography (knowing possession; that the possession falls within the s. 163.1(1) definition (without the R. v. Sharpe exception)). Once that standard has been met, an accused may allege that a material falls within the private use exception. The defence then has the onus to either indicate or enter evidence to “raise a reasonable doubt” that the defence applies.
[301] The appropriate analysis therefore falls in the same general pattern as other defences, such as self-defence (Criminal Code, ss. 34, 35, 37) or provocation (Criminal Code, s. 232). A defence may be considered by the finder of fact where the accused identifies evidence that supports all the required components of that defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; more recently R. v. Tran, 2010 SCC 58 at para. 40-41. If that evidence meets the “air of reality” threshold (R. v. Cinous, at paras. 47-60), the defence may be considered by the finder of fact and must be disproved beyond a reasonable doubt by the Crown (R. v. Cinous, at para. 39). Where an ‘air of reality’ has been established, the Crown defeats the defence where it disproves any element of the defence beyond a reasonable doubt.
[302] This appears to be a new issue. R. v. Bono is an application to strike a guilty plea. DiTomaso J. appears to evaluate the allegation that the failure by the accused to argue the R. v. Sharpe private use exception is a failure to argue a potentially relevant defence (paras. 16-19, 27). Given the nature of the application, the manner in which a R. v. Sharpe exception would be proven in court is not addressed. R. v. Dabrowski makes no comment on how the private use exception would operate in a trial context.
[303] I therefore conclude that the Accused has the onus to enter or identify evidence which would support characterization of the identified child pornography in his possession as being private use material. Defence counsel did not seem to have made that exact point, but since the R. v. Sharpe private use exception was raised (presumably as a defence) in relation to the S.C./M.A. materials, I will also evaluate whether the J.W./C.V. material may also fall into that category.
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