Canada Case Law

R. v. J. D. B.

Court

Supreme Court of Nova Scotia

Given the aggravated nature of the offences (victim under 18, abuse of a position of trust, significant victim impact), the primacy of denunciation and deterrence in child sexual offences (Friesen), the statutory direction that sentences for s.163.1 must run consecutively to other sexual offence sentences, and balancing mitigation (no prior record, positive pre-sentence report) with proportionality and totality, an aggregate custodial sentence of 18 months (12 months for s.163.1(4) and 6 months consecutive for s.162(1)(a)) followed by 24 months' probation and ancillary orders is a fit and pro…

Source excerpt

• Sentencing principles
• Denunciation and deterrence
• Consecutive sentences
• Ancillary orders (dna, soira)
• Publication restrictions

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R. v. Keena

Court

Court of Appeal for Ontario

The trial judge correctly found the appellant had an air of reality to an honest belief defence but failed to take all reasonable steps to ascertain the complainant's age and was therefore reckless; that factual finding was open on the record and supports conviction; the five-year global sentence falls within Friesen guidance and is not demonstrably unfit, so both conviction and sentence appeals are dismissed.

Source excerpt

• Mistake of age defence
• Recklessness
• Reasonable steps to ascertain age
• Online sexual communication
• Publication ban

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R. v. Atanassov

Court

Supreme Court of British Columbia

Sentencing for sexual interference and making child pornography: the court imposed a global custodial sentence of 4.5 years, with probation and ancillary orders.

• Sentencing principles
• Denunciation and deterrence
• Totality principle
• Pre-trial custody credit
• Ancillary orders
• Publication ban

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Further Detention of Things Seized (Re)

Court

Supreme Court of British Columbia

The court dismissed a Crown application to further detain a seized cellphone, finding the investigation was not shown to be complex and the delays were unexplained.

• Detention of seized property
• S.490 criminal code
• S.487.3 sealing orders
• Complexity of investigation
• Digital forensic services delays
• Criminal-code-s-490

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R. v. West

Court

Court of Appeal for Ontario

The appeal is dismissed because (1) recklessness suffices for internet luring under s.172.1(1)(a) per R. v. Fox and there is no basis to disturb that conviction, and (2) on the trial judge's unchallenged factual findings the appellant was wilfully blind to the complainant's age (equivalent to knowledge) for the possession offence, so that conviction stands; alternatively the curative proviso cures any omission.

Source excerpt

• Mens rea
• Wilful blindness
• Recklessness
• Curative proviso
• Credibility findings
• Statutory interpretation

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R. v. Burke

Court

Supreme Court of Nova Scotia

The judge concluded that the Crown proved beyond a reasonable doubt that Burke surreptitiously recorded the complainant and possessed child pornography because independent witness identification of the complainant in a dated 'new' video on the accused's phone, the accused's unusual conduct leaving with his phone, and the absence of any reasonable alternative explanation together supported an inference of guilt on the required elements of ss.162(1)(a) and 163.1(4).

Source excerpt

• Voyeurism
• Possession of child pornography
• Burden of proof
• Credibility assessment
• Circumstantial evidence
• Publication ban

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R. v. Berganza-Zaldana

Court

Court of Appeal for Ontario

The only reasonable inference available on the evidence was that the appellant intentionally created and retained a unique, password-protected backup containing child pornography with knowledge and control of the material; therefore the conviction for possession was supportable and not unreasonable.

Source excerpt

• Possession
• Knowledge element
• Circumstantial evidence
• Reasonable inference
• Appellate review

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R. v. Collier

Court

Court of Appeal for Ontario

The trial judge properly treated the accused's omission to mention the 18+ checkbox in his voluntary pre-trial statement and his lack of the emotional reaction predicted by the defence expert as material inconsistencies and admissible considerations for credibility; those findings were open on the record and supported the conclusion beyond a reasonable doubt that the accused believed the correspondents were underage. The warrant and seized evidence were properly admitted and the sentence appeal and fresh evidence motion lacked merit.

Source excerpt

• Credibility assessment
• Pre-trial statements and omissions
• Air of reality test
• Warrant validity and omissions in ito
• Sentencing for sexual offences against children
• Publication bans

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R. v. Pulford

Court

Court of Appeal for Ontario

The court held the agreed statement of facts cured the facial jurat defect, the affiant's descriptions and the videos provided reasonable and probable grounds to issue the warrant, there was no s.8 breach requiring exclusion, the reviewing judge erred, the seized evidence is admissible and the matter must proceed to trial.

Source excerpt

• Search warrant validity
• Section 8 charter (unreasonable search)
• Section 24(2) charter (exclusion of evidence)
• Definition of child pornography (s.163.1)
• Commissioners for taking affidavits act compliance
• Garofoli review standard

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R. v. Harroff

Court

Supreme Court of British Columbia

Sentencing decision for making and transmitting child pornography. The court imposed 8 months' concurrent imprisonment, 18 months' probation, and exempted the offender from SOIRA registration.

• Making child pornography s.163.1(2)
• Transmitting child pornography s.163.1(3)
• Soira registration
• Conditional sentence order
• Victim impact
• Probation conditions

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