Case information

Criminal law — Offences — Child sexual abuse and exploitation materials — Interpretation — Definition — Written child sexual abuse and exploitation materials — Appeals — Crown appeal — Error of law — Whether Court of Appeal erred in interpretation of written child pornography under s. 163.1(1)(b) and (c) of the Criminal Code — Whether Court of Appeal erred in interpretation of scope of Crown’s right to appeal errors of law under s. 676(1)(a) of the Criminal Code — Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1(1)(b),(c), 676(1)(a).

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(PUBLICATION BAN IN CASE)

The appellant posted an advertisement in the “Casual Encounters” section of a free online user-to-user classified advertisement website. Although the terms of the website preclude anyone below the age of consent from joining, it is monitored by police. A detective posing as a 14-year-old-girl named “Sasha” responded to the ad. The appellant and “Sasha” exchanged hundreds of messages, some in which the appellant described sexual acts. The appellant and “Sasha” arranged to meet at a park and the appellant was arrested when he arrived for the meeting. The appellant was charged with the following offences under the Criminal Code, R.S.C. 1985, c. C-46: making written child pornography* (s. 163.1(2)); distributing written child pornography* (s. 163.1(3)); possession of written child pornography* (s.163.1(4)); and two counts of child luring (s. 172.1(1)(b)). At his trial before judge alone in the Ontario Court of Justice, the appellant testified that he did not believe that “Sasha” was a 14-year-old girl. He thought he was corresponding with another adult, and that they were both role-playing. He said he went to the meeting to confirm that “Sasha” was not a child. The trial judge acquitted the appellant of all counts charged. The Court of Appeal unanimously allowed the Crown’s appeal. It held that the trial judge erred in his application of the definition of written child pornography in s. 163.1(1)(b) and (c) and in his interpretation of s. 172.1. The court set aside the acquittals and entered findings of guilt on all counts. A new trial was then ordered on all counts restricted to the issues of entrapment and sentencing.

*As a result of An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material), S.C. 2024, c. 23, the term “child pornography” was replaced with “child sexual abuse and exploitation material” in the Criminal Code. The term “child pornography” was the term used at the time of trial and in the Court of Appeal reasons.