2013 ABCA 112

In 2013 ABCA 112, Mr. C was charged with multiple counts of luring, two of sexual assault, sexual interference, abduction, possessing child pornography and making child pornography.

Ten of the convictions related to two teenagers, Ms. P and Ms. C.

Mr. C met Ms. P when she was 12 years old and Ms. C when she was 13 years old. Mr. C told Ms. P he was 23 years old. Mr. C would communicate with the two girls through Nexopia, and text messages. He later met them in person and had sexual interactions with them. At one point, he drove Ms. P to his home in another town to have sexual encounters with her. He used a Blackberry to take multiple nude photos and videos of Ms. C, which he stored on his computer.

At trial, he was acquitted of one of the counts of luring and two of the sexual assault convictions. One of the luring convictions was stayed under the Kineapple principle.

He appealed his conviction.

His appeal was allowed for the sexual assault and interference charges related to Ms. C and to the luring of Ms. P. It was dismissed in relation to the creation and possession of child pornography, sexual assault and abduction of Ms. P.

Mr. C argued the private use defence for the child pornography offences and also argued that it was not clear in the images whether the girl was 13 or 14 years old at the time (if she was 14 years old, she could consent to the sexual activity). Ms. C’s statements and testimony were un-clear about her age at the time of the offence, she had contact with Mr. C for around 2.5 years during which she was both under and over 14 years old. The meta data on the photos showed they could have been taken before her 14th birthday or just after, leaving reasonable doubt as to when the two first had sexual contact. Ms. C testified that she was a willing participant in the videos and photographs, but legally could not consent to them until she was 18.

As for the private use defence, the court held that although Ms. C may have been old enough to consent to the sexual activities at the time of the image, there was still an element of exploitation due to the age difference between the two and the fact that he had other child pornography on his devices. Evidence showed that some of the images were taken with the intention of pleasing Mr. C and that he had control over the images and devices they were stored on, suggesting that there was not a mutual benefit, but a benefit for Mr. C alone.

In relation to the luring offences, Mr. C successfully argued that a Blackberry is not a computer system and thus his behaviour could not be considered luring by a computer system as required by the provision. Text messages were considered data and were the main means of communication related to the luring offences, but there was no other evidence presented that the Blackberry was a computer system nor was there evidence that the sexual offences were connected to the communication on Nexopia or MSN. The luring offence has since been amended to substitute communication via computer system to communication via telecommunication.

276 photos and 66 videos of child pornography were found on Mr. C’s computer, including those of Ms. C. Some of the videos had been downloaded on a filesharing website and three other users had password protected accounts to access the computer. However, it was held that there was sufficient evidence that Mr. C owned and controlled the computer which amounted to possession of the images. Many of the images were in a folder under the password protect-ed account that Mr. C had access to. The court ruled that it was acceptable to infer that he had possession of the child pornography. The appeal on this count was dismissed.

In 2013 ABCA 223, Mr. C’s sentence was reduced to nine months to reflect the acquittals.

Also see: [2013] SCCA No 309 (Application to appeal); 2013 ABCA 223 (Appeal); 2012 ABQB 149 (Trial).

Criminal Offence(s): Sexual Assault ; Luring a Child ; Child Pornography ; Sexual Interference