Copying images not
‘making’ says judge
CHRISTOPHER GULY
Copying child pornography
downloaded from the Internet does
not constitute making it, a Superior
Court judge has found in a decision
that departs from previous related
Ontario rulings while adopting
similar reasoning to judgments in
Alberta and British Columbia.
In R. v. Pelich [2012] O.J. No.
2931, Justice Tamarin Dunnet
ruled there was no evidence that
by “moving or copying” images to
CDs and DVDs, the file “became a
completely separate and new
work,” Instead, it constituted “a
simple transfer from one medium
to another in an effort to main-
tain a collection of child pornog-
raphy images.”
The accused, Oldrich Pelich,
was acquitted of making child por-
nography. But the 46-year-old man
was convicted on three counts of
possession, two counts of making
child pornography available and
one count of accessing it. He was
sentenced to four years in prison
along with a sex offender registry
order for 20 years and a lifetime
ban on attending any park where
young people might be present.
Toronto defence lawyer Chris
Biscoe, who represented Pelich,
credited Justice Dunnet for capturing the essence of Parliament’s
intent in creating the purpose-of-publication provision regarding
child pornography under Criminal
Code s. 163.1( 2).
“She made a distinction
between production offences,
which are more morally blameworthy, and consumption offences,
much like the difference between
selling drugs and using them,” Biscoe said.
“Previous rulings were driven
by the technical mechanics of how
computers store and copy data.
With her decision, Justice Dunnet
has reinterpreted the law in
Ontario post-Morelli.”
The majority Supreme Court
decision in R. v. Morelli [2010]
S.C.J. No. 8, written by Justice
Morris Fish, found that viewing
and possessing child pornography
“should be kept conceptually sep-
arate, lest the criminal law be left
Biscoe
without the analytical tools neces-
sary to distinguish between stor-
ing the underlying data and
merely viewing the representation
that is produced when that data,
residing elsewhere, is decoded.”
Toronto defence lawyer Craig
Penney, who worked with Biscoe
on the Pelich case, said Justice
Dunnet applied the Morelli
approach in finding that an aspect
of production is required in order
to attract culpability.
“This accords both with common sense and with the importance of treating those who produce new child pornography
differently than those offenders
who copy existing files only for
the purpose of possessing it,” Penney said.
Prior to the decision in Morelli,
several Ontario court rulings found
that downloading child pornography and copying it onto disks
was a “making” offence.
Penney
In Pelich, Justice Dunnet agreed
with courts in Alberta and B.C. in
finding that collecting, assembling
or organizing child pornography, or
transferring it from one medium to
another for personal use, does not
constitute a production offence.
In R. v. Keough [2011] A.J.
No. 89, the Alberta Court of
Queen’s Bench held that the pre-
Pelich Ontario cases incorrectly
broadened the making of child
pornography beyond its intended
scope and found a distinction,
analogous to the findings in
Morelli, between possession and
making an electronic file containing such material. “There
needs to be some kind of substantive change, which causes the
initial child pornography to take
on a new form and in essence to
become a completely separate
and new work,” wrote Alberta
Justice Don Manderscheid.
However, Toronto lawyer
David Butt believes that the
decisions which focus on the
purpose, such as organizing
files, are “problematic.” He prefers the previous interpretations
of the plain, ordinary meaning
of making child pornography in
which another set of images is
brought into existence “
completely and separately” from
where they originated.
“If I download an image onto a
CD, there are two images, so in a
straightforward way, I have made
another image,” explained Butt, a
former Crown attorney who spe-
cialized in Internet-related child
abuse cases. “Whether I burn one
CD to organize my personal col-
lection or mass-produce a thou-
sand CDs to distribute, it’s the
same act of making, and how do
you distinguish between those
based solely on purpose?”
He said there’s also a risk that
someone could pass along a CD
of child pornography to another
person “and the danger of that
production exists,” which leads to
further victimization by increased
distribution of the images.
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Trafficking charge thrown out for flawed ID
Trial judge admonished
for views on police
observation powers
SHANNON KARI
The Ontario Court of Appeal
has quashed the conviction of an
Ottawa man accused of selling
$20 of crack cocaine, because of
the way the trial judge applied the
identification evidence.
Justice Kent Kirkland admitted he could not identify Sydney
Cranham as the suspect in surveillance photos, yet entered a trafficking conviction on the basis
that police are “more highly
trained” to make observations
than ordinary citizens.
The Court of Appeal found
that the trial judge erred in
accepting the “opinion” of the
police, when there were a number of flaws with the Crown’s
case, including an “in-dock” identification by one of the undercover officers.
Krongold
Devlin
There was “no basis” for concluding that police “had any greater
expertise, particular advantage or
special knowledge,” in identifying
Cranham as the suspect, the Court
of Appeal stated in R v. Cranham
[2012] O.J. No. 2912, released
June 28.
“Identification findings are
subject to closer appellate scrutiny than other findings of fact,”
stated the panel of Justices
John Laskin, Robert Blair and
Alexander Hoy.
Cranham was arrested in
March, 2010. “It was a controlled
buy operation. At least three offi-
cers were involved in the sting,” said
Ottawa lawyer Howard Krongold,
who acted as duty counsel for Cran-
ham at the appeal hearing.
At trial, nine months later,
Dikah identified Cranham. The
officer testified that while the man
in the photo was wearing a toque
and large sunglasses, it did not
impair his ability to say it was
Cranham, with whom he had no
contact prior to the arrest.
Justice Kirkland stated that he
could not conclude the man in the
photos was Cranham. To do so,
based on a personal observation
would be a “total miscarriage of
justice,” the judge said. However,
since police are more skilled “to
make observations of circumstances,” Justice Kirkland convicted
Cranham and imposed a sentence
of nearly six months in jail.
The belief that police have
“special powers of observation,”
was rejected three decades ago by
the Supreme Court of Canada,
said Krongold, a lawyer at Webber Schroeder Goldstein Abergel
in Ottawa.
In R v. Graat [1982] 2 S.C.R.
819, an impaired driving case,
Justice Brian Dickson cau-
tioned trial judges on this con-
cept. “The opinion of police
officers is not entitled to prefer-
ence just because they may have
extensive experience with
impaired drivers.”
Krongold added that small
street level drug prosecutions are
not uncommon in Ottawa. “Police
are very focused on the [Byward]
Market area, perhaps because it is
a tourist area,” he said.
