SELECTED CASE LAW
ALBERTA:
In 2002 ABCA 155, Mr. Hu pleaded guilty to making child pornography. Mr. Hu owned an erotic photography business. He was hired by Mr. He and Mr. T to take photos of some individuals to be posted on a pornography website. Mr. Hu was going to receive some of the profit generated from the website. He was told there would be “no snuff, bestiality, or kiddie porn”. However, three of the people he photographed were 15, 16, and 17 years old. Mr. He told Mr. Hu that the individuals were of legal age.
Mr. Hu photographed 549 images of pornography, including scenes where one of the girls was made to look even younger than she actually was. Mr. Hu did not ask for the models’ ID. After the photos were taken, Mr. Hu was told that the three individuals were underage. After finding this out, he did not destroy the photos. Before the photos could be posted on the website, the police seized them.
At trial Mr. Hu was sentence to a 18 months to be served in the community, of which only 9 months included a curfew. The Crown appealed the sentence, arguing because the judge did not view the photos, he did not consider the evidence properly, and that the sentence was not fit for the offence.
The appeal court reviewed the photographs. It found that the trial judge had made a mistake by not viewing the photographs in order to determine how graphic they were, and failing to adequately consider the large-scale commercial activity the photographs were for, Mr. Hu’s involvement in creating the images, including making one of the girls look even younger, the length of time the photos were taken over, and the number of photos taken. The Court of Appeal stated that Mr. Hu did not have diminished responsibility because he did not recruit the young people.
His sentence was increased to 18 months’ incarceration.
Also see: 2003 ABCA 200 (Appeal).
Criminal Offence(s): Child Pornography Offences