R. v. Brown (T.J.), (2015) 375 Nfld. & P.E.I.R. 232 (NLPC)

• Judge: Porter, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 13, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 375 Nfld. & P.E.I.R. 232 (NLPC)

R. v. Brown (T.J.) (2015), 375 Nfld. & P.E.I.R. 232 (NLPC);

    1167 A.P.R. 232

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.016

Her Majesty The Queen v. Thomas John Brown

(0814A00190)

Indexed As: R. v. Brown (T.J.)

Newfoundland and Labrador Provincial Court

Porter, P.C.J.

December 2, 2015.

Summary:

The 18 year old accused, through a series of text messages, persuaded a 14 year old girl to send him pictures of herself, including naked pictures. The accused had a picture of the girl's vagina set as the wallpaper on his cell phone. The accused was charged with possession of child pornography (Criminal Code, s. 163.1(4) and using a computer system to facilitate the commission of an offence (s. 172.1(1)(a)). The accused argued, inter alia, that the "private use exception" applied.

The Newfoundland and Labrador Provincial Court found the accused guilty on both counts.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 575.1

Public morals - Obscenity (incl. child pornography) - Possession of child pornography - [See Criminal Law - Topic 588.4 ].

Criminal Law - Topic 588.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Defences - Private use - The 18 year old accused and 14 year old girl met as "friends" on Facebook - They never met in person - The accused knew that she was 14 - Through a series of texts, the accused persuaded the girl to send him pictures of herself, both clothed and naked - The accused had a picture of the girl's vagina set as the wallpaper on his cell phone - His phone was not password-protected - He denied showing the pictures to anyone - The Newfoundland and Labrador Provincial Court found the accused guilty of possession of child pornography (Criminal Code, s. 163.1(4) and using a computer system to facilitate the commission of an offence (s. 172.1(1)(a)) - The court rejected the defence of "private use exception" - The accused did not create the pictures, was not present when they were created, and they depicted the girl rather than himself - Section 163.1 fixed the age of consent to participate in the recording of pornography at 18 - Further, the accused admitted that the girl specifically requested that he delete the pictures, but he did not - The court stated that "As the person who persuaded the girl to take the pictures and to send them to the accused, the accused must, pursuant to s. 22, be considered to be a party to the offences of creation, possession, and distribution of child pornography. The fact that the police exercised their discretion in not charging the girl with an offence does not change that. ... Whether as primary actor, or as a party counselling an offence, it follows that the accused must be convicted of [ using a computer system to facilitate the commission of an offence]." - See paragraphs 1 to 114.

Criminal Law - Topic 709

Sexual offences - Particular offences - Internet luring (by means of computer system) - [See Criminal Law - Topic 588.4 ].

Cases Noticed:

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 4].

R. v. Barabash (D.J.) et al. (2015), 471 N.R. 143; 593 A.R. 3; 637 W.A.C. 3; 2015 SCC 29, refd to. [papra. 6].

R. v. Keough (J.A.) (2011), 501 A.R. 26; 2011 ABQB 48, refd to. [para. 75].

R. v. Brown (T.J.) (2015), 370 Nfld. & P.E.I.R. 223; 1153 A.P.R. 223; 2015 NLTD(G) 104, refd to. [para. 82, footnote 1].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 87].

R. v. Hamilton (R.L.), [2005] 2 S.C.R. 432; 336 N.R. 302; 371 A.R. 201; 354 W.A.C. 201; 2005 SCC 47, refd to. [para. 103].

R. v. Pengelley (N.), [2009] O.T.C. Uned. 971 (Sup. Ct.), refd to. [para. 109].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 22 [para. 102]; sect. 163.1(1)(a) [para. 96]; sect. 171.1(1) [para. 108].

Counsel:

A. Manning, for the Crown;

E. Evans, Q.C., for the accused.

This matter was heard on June 11, August 26-27, September 8 and 10, and October 13, 2015, before Porter, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on December 2, 2015.