SELECTED CASE LAW
In 2000 BCCA 554, Mr. S, a 50-year-old artist, was convicted of making and possessing child pornography related to Ms. S, and also for invitation to sexual touching.
Ms. S was between 11 and 12 years old when the video tapes were made. She met Mr. S through a friend of her sisters. She went to his home where Mr. S showed her videotapes of the content he would like to make of her. He told her he would not show anyone and it was for his own personal pleasure. He then filmed her posing in clothing, including in the shower where her clothing was soaked and you could see her breasts and pubic hair. In the second video, she went to Mr. S’s home alone and he filmed her in her clothing posing on a rock with sexually explicit messages on it. He told her to make herself “sensous and sexy” and used other sexually explicit language when talking to her on film. Part of the film was missing, but Ms. S testified that Mr. S instructed her to touch her breasts to make her nipples hard during that portion of the filming. Mr. S testified he did not instruct her to do that for a sexual purpose but to capture a physiological response, which the judge did not accept. Ms. S also testified that Mr. S had her remove her clothing, spread her legs and “spread your lips” which Ms. S under-stood as her labia. At which point, Ms. S began to cry. Mr. S testified he had meant her mouth but the trial judge did not accept this. The trial judge found the video’s content, the girl’s poses, and Mr. S’s instructions to be suggestive and sexual, including discussing the girl’s lack of previous sexual experience.
At trial, he was sentenced to two years less a day in jail plus three years’ probation.
He appealed his conviction, arguing that the trial judge had made a mistake when he found that Mr. S made the videos and asked Ms. S to touch herself for a sexual purpose.
In regards to the invitation to sexual touching charge, the appeal judge took into account the content and language of the video and agreed that Mr. S had asked Ms. S to touch herself for a sexual purpose, not an artistic purpose.
The conviction of possessing child pornography was dropped due to changes in the law in British Columbia at the time, that found this provision to be unconstitutional.
In regards to the making child pornography conviction, the trial judge found that the videos had been made for a sexual purpose. The appeal court dismissed the appeal on this conviction.
The convictions for making child pornography and inviting a child to touch herself for a sexual purpose were upheld, and the conviction for possessing child pornography was dropped.
Criminal Offence(s): Child Pornography Offences