IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
R. v. “Y” 2015 NSPC 14
Date: April 2, 2015
Docket: 2675200
2675201
2675202
2675203
Registry: Halifax
BETWEEN:
HER MAJESTY THE QUEEN
v.
“Y”
TRIAL DECISION
BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK
HEARD: March 2, 3, 4, 5, 6 and 24, 2015
DECISION: April 2, 2015
CHARGES: sections 346 (1.1); 163.1(4); 163.1(3)(a); 430(1)(d) Criminal Code
COUNSEL: Mark Heerema and Jamie Van Wart, for the Crown
Peter Planetta, for “Y”
By the Court:
Introduction
[1] As much as this case is about whether criminal offences were committed by “Y” it is about lonely, anxious teenagers and the harm caused by the callous exploitation of internet anonymity. The trial evidence has indicated that various young people involved in this case, including the accused and the complainant, were fragile and vulnerable. Talking on the internet was easier than interacting in person. Unable to function comfortably and confidently in school and the community, these teenagers became isolated in their homes and deeply invested in online friendships and activities, not all of which was as it seemed. Casual cruelty, shattered trust, attempted suicide and criminal charges are the bitter harvest of the shadowy, distorted world these teens inhabited.
The Charges
[2] “Y” has been charged that between November 2, 2012 and November 14, 2013, “without reasonable justification or excuse and with intent to obtain photos”, he induced a teenage girl to produce intimate photographs of herself, contrary to section 346(1.1) of the Criminal Code. This is a charge of extortion. He is also charged with possession of child pornography – the photographs, contrary to section 163.1(4) of the Criminal Code, and with having child pornography – the photographs, unlawfully in his possession for the purpose of distributing it, contrary to section 163.1(3)(a) of the Criminal Code.
[3] A charge of mischief (wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property) was also laid but at the end of the trial the Crown indicated it was not seeking a conviction and I am entering an acquittal on this count.
[4] The child pornography that “Y” is charged with possessing are two photographs of “A”, who went by the name “A” at trial and in the online communications in evidence. The photographs are “selfies” of “A”’s abdomen and torso. They depict her breasts. In posing for both photographs “A” pulled her shirt up above her breasts. In one photograph she is wearing a bra. In the other image, she is not.
[5] “A” took the “selfie” photographs of her breasts at the urging of L.W., a fake Facebook account which “Y” has admitted creating. In these reasons I will be discussing the creation of phony Facebook accounts and the use to which they were put.
[6] The two “selfie” photographs that led to the criminal charges against “Y” were created at different times. The “bra-on” photograph was taken and sent to L.W. by “A” on November 4, 2012. The “no-bra” photograph was taken and sent on November 5. These two events were separated by messaging between L.W. and “A” that takes up 107 pages of chat logs reproduced in Exhibit 1, Tab C. Sometime later, the two photographs are combined into a single file, each image remaining distinct. I will variously refer to the photographs, the photograph, the “selfies”, and the image. Unless I indicate otherwise, I am talking about both the “bra-on” and the “no bra” images as they were saved and disseminated together.
The Computer and the Technological Evidence
[7] There was considerable evidence led by the Crown concerning a Dell computer seized from “Y”s home by the police on November 14, 2013. The evidence was intended to address the issues of exclusive access and continuity post-seizure. However, “Y”’s testimony laid those issues to rest. He identified the seized computer (Exhibit 8) as the computer he and an online friend called ”Z” had used to communicate with “A” using the Facebook identities “B.P.” and “L.W.”. He confirmed that it was this computer on which he created the folders and file path where he saved the “bra-on” and “no-bra” photographs obtained from “A”.
[8] I want to note that I have deliberately tried to keep my description of the facts simple. I will not be discussing the extensive evidence provided by the Crown’s computer expert, S/Cst. Rod Smith, nor will I be explaining how “Y” used someone else’s passwords and Tumblr account to maintain his anonymity. I concluded I did not need to review this evidence for my reasons.
Positions of the Crown and Defence
[9] In the Crown’s submission “Y” is guilty of all three offences – extortion, possessing the photographs of “A”’s breasts which, the Crown submits, are photographs that constitute child pornography, and possessing the photographs for the purpose of distributing them.
[10] Mr. Planetta says that “Y”’s guilt has not been established. In Mr. Planetta’s submission, “Y” did not commit, nor was he a party to, an extortion of “A”. The “selfies” do not constitute child pornography so “Y” committed no offence by possessing them, which he has admitted. And he can only be convicted of possession of the photographs for the purpose of distributing them if the Crown proves beyond a reasonable doubt that (1) they are child pornography, and (2) that “Y” possessed them for the purpose of distribution, or was a party to their possession for that purpose.
Presumption of Innocence and Reasonable Doubt
[11] It is not the responsibility of “Y” to demonstrate, establish, or prove his innocence or to explain away the allegations made against him. He is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus of proof beyond a reasonable doubt throughout the trial and it never shifts.
Do the Photographs of “A”’s Breasts Constitute Child Pornography?
[12] I will deal first with the issue of whether the “selfies” of “A”’s breasts constitute child pornography as defined in law. Child pornography is defined in section 163.1(1) of the Criminal Code. It includes, under section 163.1(1)(a)(ii), a photograph that has as its “dominant characteristic” the depiction “for a sexual purpose, of a sexual organ…of a person under the age of eighteen years.”
[13] Mr. Planetta has submitted that the photographs of “A”’s breasts are not captured by the Criminal Code definition for child pornography.
[14] I cannot agree. “Y” testified that he knew “A” was turning 16 in 2012. The conclusion that the bare breasts of a pubescent female are sexual organs for the purposes of section 163.1(1)(a)(ii) of the Criminal Code is amply supported by common sense and judicial opinion. (R. v. S. (V.P.), [2001] B.C.J. No. 930 (S.C.), paragraph 84; R. v. Nedelec, [2001] B.C.J. No. 2243 (S.C.), paragraph 39; R. v. Knox, [2010] O.J. No. 245 (S.C.J.), paragraph 32) Common sense is informed by mainstream and popular culture and advertising that objectifies and exploits the sexualized appeal of breasts. No one can seriously suggest that women’s and girl’s breasts are not sexual organs.
[15] Whether the depiction in a photograph, such as the “selfies”, of a girl’s breasts has a sexual purpose as its “dominant characteristic” is to be determined objectively. (R. v. Sharpe, [2001] S.C.J. No. 3, paragraph 50) Context is relevant.
[16] The “selfies” depict a young girl’s breasts. The eye of the camera focused on nothing else. The messaging about the photographs is sexualized. For example, after “A” sends the “bra-on” “selfie”, L.W. tells her “…omg ur not even flat…but we agreed on “no-bra”.” (Exhibit 1, Tab C, page 166) L.W. expressly wants to see “A”’s “tits” and “boobies”. (Exhibit 1, Tab C, pages 157, 158 and 232) Before “A” sends the “no-bra” “selfie”, L.W. showers her with compliments and makes explicit sexual overtures: “yer so perf like omg fuck me pls…I legit wanna fuck you letting you know that.” (Exhibit 1, Tab C, pages 244 and 245) The L.W. account tells “A” that the first photograph of “A”’s bra-covered breasts - “the other picture” - got her “wanting more.” On the basis of being in receipt of the first photograph, L.W. tells “A” her body is “hawt.” (Exhibit 1, Tab C, pages 269 and 270)
[17] This is just a sampling of the messaging between L.W. and “A” reproduced in evidence for this trial. The messaging leaves no doubt about L.W.s’ sexualized interest in photographs of “A”’s breasts. It is immaterial that “Y” does not recall being the author of the “I legit wanna fuck you” message. The evidence is clear that he was at the very least an observer during the posting of these sexualized messages.
[18] The sexualized commentary that infuses the messaging by L.W. is the context in which “A”’s breasts were photographed and forwarded. Another relevant piece of evidence is the location where “Y” stored these images. He testified that he had saved the two “selfies” to his computer, tucking them away in a file path with many folders. Some of the initial sub-folders in the chain were unnamed folders, which, according to S/Cst. Rod Smith, are very difficult to create. The photographs were stored in a folder entitled “A”.” “Y” admitted that the many other named folders in this string of folders contained pornographic images. The “burying” of the “A” photographs along an obscure file path with other pornographic images is another indication the images had no innocent, non-sexual purpose.
[19] I will also note that in cross-examination “Y” acknowledged he and ”Z” were looking to get “a sexual picture” of “A” and that they wanted one with “no-bra”.
[20] I am satisfied beyond a reasonable doubt that the dominant characteristic of the depiction of “A”’s breasts in the “selfie” photographs was for a sexual purpose and that the photographs qualify as child pornography within the Criminal Code definition.
[21] It is immaterial that “Y”, 16 years old at the time of the “A” “selfies”, is not the accused who typically comes to mind when we think of the harms associated with child pornography. The child pornography legislation is intended to protect children but not immunize them if they offend against the provisions. The Supreme Court of Canada in Sharpe described Parliament’s “main purpose” in criminalizing the production, distribution and possession of child pornography as the prevention of harm to children. (Sharpe, paragraph 34) Children are the most vulnerable members of our society and are entitled to the protection of legislation that “promotes respect for [their] inherent dignity…by curbing the existence of materials which degrade them.” (Sharpe, paragraphs 194 and 213) As this case shows, even other vulnerable teens can be perpetrators.
The “Private Use” Defence
[22] “Y” has raised the “private use” defence in relation to his possession of what I have found to be child pornography. I find that the Crown has proven beyond a reasonable doubt that the defence does not apply in this case. For the defence to apply, the following conditions must be met: both parties must have consented to the creation of the image. The image must be kept in strict privacy by the person in possession, and intended exclusively for private use by the parties. As stated by the majority of the Supreme Court of Canada in Sharpe:
…a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with each other…(paragraph 116)
[23] It will become clear once I discuss my findings of fact with respect to “Y” and ”Z” and the L.W. account that the “private use” defence fails in this case.
“Y” and ”Z” and the L.W. and B.P. Fake Facebook Accounts
[24] “Y” testified that he was only acquainted with “A” as an on-line Facebook friend. He had other on-line friends, one of whom went by the name “Z.” He had met ”Z” playing Habbo, an on-line game. “Y” recalls this being when he was 11 or 12. ”Z” claimed to be a year older. He told “Y” his first name was ”Z” and he lived in California.
[25] “Y” and ”Z” did not keep in regular contact. One day in 2012 ”Z” messaged “Y” out of the blue. This renewed connection led to the creation of fake Facebook accounts and identities, remote accessing of “Y”’s computer, and the photographs of “A”.
[26] At this time “Y” had a low opinion of his on-line friend “A”, at least insofar as he viewed her as attention-seeking. When ”Z” wondered if “Y” knew anyone who was “easily annoyed”, “Y” suggested “A”. He and ”Z” thought that creating a phony Facebook account “just to annoy” “A” would be “funny”.
[27] “Y” created a Facebook account for “B.P.”. Later on he created another fake account in the name of “L.W.”. This was to make the B.P. account seem more authentic by inventing what was intended to look like a real-life friend for the B.P. character. B.P. was perceived by her intended audience, which included “A”, to be a teenage girl. “A” also believed L.W. to be a teenage girl.
[28] “Z” introduced “Y” to remote access. “Y” thought it sounded “cool.” He and ”Z” could both be messaging “A” from “Y:’s computer and see each other’s messages. “Y” recalls that for remote access to work the program had to be opened and he had to provide ”Z” with a code to input. “Y” had to allow access every time ”Z” wanted to remotely access “Y”’s computer. “Y” never had remote access to “Z”s computer.
[29] “Y: testified there were times when he messaged from the B.P. and L.W. accounts without “Z”. There was only one instance that “Y” can recall of ”Z” remoting into his computer and messaging from it without “Y” being present. This was some time later in the chain of events when ”Z” sent the photographs of “A” to her ex-boyfriend’s Facebook account. I will describe this at the appropriate point in the narrative.
[30] “Z” and “Y” added “A” as a friend to the B.P. account. According to “Y” they talked to “A” a lot in an effort to get to know her and gain her trust. “Y” testified that their objective was to find out “who she really was.” They wanted to know if what she said was true or just an attention-getting ploy. Presumably you have to be an immature teenager to understand why this would be worthwhile.
[31] The messaging by the B.P. Facebook account controlled by “Y” and ”Z” went on for months. It involved a lot of “small talk.” “Y” testified that the majority of messages from the B.P. account to “A” were typed by him. Remoted-in ”Z” was watching the conversation and would sometimes make a typed contribution. “A” was unaware that her “friend” B.P. was really two strangers.
[32] When “Y” first created the L.W.s’ Facebook account, it was not used much. “A” was added as a friend to the account. “B”, a real-life friend of “A”’s who was also a Facebook friend, got added as well. L.W. messaged both “A” and “B”. “Y” and ”Z” were equally involved in sending the messages from the L.W.s’ account.
[33] Lonely, confused teenagers were drawn to B.P. She had a magnetic effect. “Y” recalls that “A” and “B” had conflict over the B.P. account, believing she was a real person which led to them experiencing some petty jealousy. When “B” testified, she said she had thought of herself as being in a dating relationship with B.P., whom of course neither she nor “A” had ever spoken to or met.
[34] In early October 2012, “Y” and ”Z” decided to kill off B.P. They wanted to wrap up what they had been doing with that fake account as it was “getting boring.” “Y” used the phony L.W. account to communicate with “A” and “B” that B.P. had killed herself. While testifying, “Y” was visibly upset when recounting what happened next although it is apparent that at the time he allowed himself to be oblivious to the effect his actions might be having. This was in spite of the fact that in August “A” had been expressing suicidal ideation in her messaging with L.W.. (Exhibit 1, Tab C, page 22) “A”’s statements led “Y”, under the guise of L.W., to message “Y”’s family on August 4, 2012 with a warning that “A” was talking about killing herself on August 13. (Exhibit 1, Tab F, page 1) He was obviously unwilling to dismiss these messages as merely attention-seeking.
[35] L.W. didn’t spare “A”: she was told that B.P. had sliced her throat. (Exhibit 1, Tab C, page 41)
[36] Overwrought by the news of B.P’s suicide, “A” and “B” tried to kill themselves and were hospitalized. “Y” was visibly shaken and upset in the witness box when he described learning about this.
[37] At the time however it seems to have been easy for “Y” and ”Z” masquerading as L.W. to feel complete indifference about the real emotions “A” and “B” were experiencing over B.P.’s “suicide.” L.W. indulged in an ongoing messaging exchange with “B” from early August until later in October 2012. “B” was struggling to come to terms with the loss. She had had some doubts about whether B.P. was a real person but L.W. was convincing. “B”’s turmoil is revealed in a message she sent to L.W. on October 22:
sorry for accusing her of being fake..like that would fucking suck if she was.. like someone putting me and [“A”] through all that pain and then learning that that little B.P. girl we cared so much about and loved was never real to begin with :( I heard it happened to someone but if B.P. was fake I think id know by now so :/ (Exhibit 1, Tab H, page 12)
[38] L.W. smoothly carried on the charade: “I promise u she wasnt fake” (Exhibit 1, Tab H, page 12)
[39] “A”’s fragility did not discourage “Y” and”Z” from pursuing a strategy to obtain intimate images from her.
L.W. Obtains the Intimate Images from “A”
[40] How “Y” came into possession of the intimate images of “A” followed events that unfolded after B.P. had been dispatched. He and ”Z” learned that “A” had figured out the B.P. and L.W. accounts were phony Facebook accounts. Using the L.W. account, “Y” and ”Z” admitted to having created the B.P. account. “A” wanted to know who L.W. really was. “Y” testified it was “Z”’s suggestion that they use “A”’s desire to know L.W.s’ identity to try and “get a picture” out of her. “Y” went along.
[41] With ”Z” joined by remote access, “Y” messaged “A” to tell her L.W.s’ true identity would be revealed to her in exchange for a photograph. The L.W. account told “A”: “if I could see your tits ill be more willing to tell u…Just one picture of your tits and ill tell u [“A”]” (Exhibit 1, Tab C, pages 157 and 158)
[42] Over a series of exchanges, “A” was persuaded to send a “selfie” photograph with her shirt pulled up revealing her bra and abdomen. (Exhibit 1, Tab C, page 166) “Y” confirmed this was the “bra-on” photograph tendered into evidence and identified by “A”.
[43] The “bra-on” photograph wasn’t enough for “Y” and “Z”. “Y” testified that they “wanted more.” He cannot recall now if he as L.W. asked for the second photograph or if it was “Z”.
[44] “A” produced a second photograph after some considerable hesitation. She sent it to L.W.. (Exhibit 1, Tab C, page 273) It was the “no-bra” photograph. Her anxiety and distress spiked after she forwarded the image. As I noted earlier in these reasons, “Y” saved the photographs to his computer.
[45] “A” sent the “selfies” of her breasts to the L.W. account being controlled, unbeknownst to her, by “Y” and “Z”. This falls well outside what is required for the “private use” defence I discussed earlier. These were not photographs that were obtained on the basis of informed consent and kept privately for private use, rendering “the potential for its harmful use by others minimal.” (Sharpe, paragraph 105) They were obtained through deceit and misrepresentation and shared by “Y” and whomever ”Z” may be. Applying the “private use” defence on the facts of this case would be a distortion of the constitutional protection extended to expressive conduct which underpins the defence. The decision of the Alberta Court of Appeal in R. v. Cockell, [2013] A.J. No. 466 is instructive in this regard:
I do not interpret Chief Justice McLachlin’s comments in para. 116 in Sharpe, “That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children” as meaning that consent from a person under the age of 18, but over the age of 14 (now 16), compels the conclusion that there was no exploitation or abuse in the creation and possession of the material in question, i.e. that once a child gives consent to having her image taken, that conclusively rebuts any suggestion that he or she has been exploited in the harvesting of that consent or in the taking of the image. Otherwise, a predator need only manipulate his or her victim to the point of obtaining consent to be free from criminal sanction, which can hardly have been the intent of Parliament when it created the offences of making and possession of child pornography. (paragraph 37) (leave denied [2013] SCCA No. 309)
[46] The reasoning of the Alberta Court of Appeal in Cockell assists me in concluding that “A”’s willingness to produce the intimate images of herself for L.W. does not bring “Y”’s possession of those images within the “private use” defence. To quote further from Cockell:
…The issue of lawfulness in this context was not limited to whether any specific crime was committed against the children in the video, or in the physical process of making the video. The lawfulness of the activity in the video for the purpose of an exception that protected expressive freedom was activity that did not involve child exploitation or abuse as cognizable in law generally, not just crimes under the Code. …(paragraph 36)
[47] The evidence clearly establishes that “A”’s consent to producing sexual images of herself for L.W. was exploited, manipulated consent. Indeed, after receiving the “no-bra” photograph, L.W. berates “A” for caving to pressure to forward the image. L.W. acknowledged the manipulation in a protracted scold:
LW: why did you send me the picture
LW: because you wanted to know who I was
LW: because I dont want you making that mistake again
LW: anybody can come up to you and manipulate you like this
LW: you sent me your boobs
LW: just to know who i was
LW: I know i asked for it but you were crazy for doing it
LW: im not being mean
LW: im just saying be more careful in the future
LW: the pictures you sent me are long gone but if someone comes up to you and does this im 99% sure they would keep the pictures (Exhibit 1, Tab C, pages 291 – 292)
[48] I agree with Mr. Heerema’s submission in relation to the “private use” defence: “Y” cannot claim “the spoils of exploitation.” I am satisfied beyond a reasonable doubt that the “private use” defence does not apply on the facts of this case.
L.W. Threatens to Send Out the Photograph – “Make It Zero With Another Picture”
[49] The promise to “A” by the L.W. account of disclosure of the account’s true identity was never fulfilled. After “A” sent the “no-bra” photograph on November 5, 2012, the L.W. account at first balked at disclosing her identity and then gave a false name. (Exhibit 1, Tab C, page 276) Additional photograph requests were made with the L.W. account indicating she was willing to add “A” to her Facebook account, “for another picture of you…” (Exhibit 1, Tab C, page 277) L.W. also toyed with “A”, dangling the possibility that she would send out the photograph. She told “A”: “I mean I could but I rather not.” (Exhibit 1, Tab C, page 281)
[50] “Y” acknowledged being the author of much of the messaging with “A” . He appeared to have a good recall of how the conversations had unfolded. Under direct examination he testified however to having no recollection of an exchange between L.W. and “A” about 20 minutes after she sent the “no-bra” photograph. In that exchange, L.W. proposed that “A” send another photograph “to be sure” she did not send out the earlier picture. When “A” asked L.W. to quantify the “good chance” she wouldn’t distribute the photograph, L.W. responded by saying “25 %.” She then said to “A”: “Make it 0% with another picture if that worries you.” Understandably “A” reacted with fury: “I fucking trusted you.” (Exhibit 1, Tab C, page 282)
[51] L.W. continued to float the possibility of the intimate image being sent out. She told “A” there was a “low chance” she would do so and asked for “one more” photograph. “A” told L.W. she couldn’t breathe and L.W. offered to delete the picture and then claimed to have done so. (Exhibit 1, Tab C, pages 284 – 288) “A” was in a fragile state. Approximately 45 minutes after sending the “no-bra” photograph she messaged L.W. to say: “I’m 300% more suicidal now.” (Exhibit 1, Tab C, page 289)
[52] Shortly after this, as I described earlier, L.W. scolded “A” for sending the photograph and chastised her for allowing herself to be manipulated. She claimed that the photographs were “long gone.” (Exhibit 1, Tab C, page 292)
[53] Of course it was one more lie that the photographs were gone. “Y” had saved them on his computer. They would come to be posted on “A”’s Facebook page, something “Y” denies doing. That, he says, was done by “Z”. This is what I will be discussing next.
[54] In due course I will return to more closely examine the evidence as it relates to L.W.s’ threats on November 5 to send out the intimate images unless “A” produced another photograph. (Exhibit 1, Tab C, page 282) On November 7 “A” was greeted with another threat which I will also discuss shortly, made from another fake account created by “Y”.
Posting the Intimate Images to “A”’s Facebook Page
[55] “Y” testified that ”Z” thought it would be “funny” to post “A”’s intimate images to her Facebook page for everybody to see. He told “Y” this on MSN. It was “Y”’s evidence that he “wasn’t really for it” but wasn’t telling ”Z” he was against it. ”Z” told him the photographs were going up.
[56] According to “Y” he dealt with “Z”’s decision to post the photographs by continuously checking “A”’s Facebook page to see if the photographs had appeared. He says he wanted to tell her it was on her “wall.” When it appeared, “Y” saved the photograph and messaged “A” from his personal Facebook account privately to tell her it was there and to take it down.
[57] “A” deleted the posting after “Y” contacted her. Seeing the photograph on her Facebook page where it was available to be viewed by her 2000 Facebook friends was devastating to her. Already fragile and anxious, she experienced an anxiety attack.
[58] “Y” testified that he did not post the photograph and the posting was not done from his computer.
[59] Notwithstanding the fact that, according to “Y”’s evidence, he did not participate with ”Z” in the posting on “A”’s Facebook page, he and ”Z” continued to collaborate. “Y” testified that they thought it would be “funny” to deploy another fake account to be used to message “A” about seeing the posted photograph and “joke around with her.”
[60] That “Y” and ”Z” would still find sport in tormenting “A” illustrates the thoughtless, casual cruelty that characterizes this case. They appear to have been incapable of perceiving or appreciating “A”’s anguish which saturates the chat logs in Tab C of Exhibit 1, containing the messaging between L.W. and “A” that led to “A” providing the intimate photographs “Y” and ”Z” continued to exploit.
The Threat via the T.K. Fake Account to Disperse the Photograph
[61] In accordance with the plan to continue toying with “A”, “Y” created a new phony account in the name of T.K. and used it to start a conversation with “A”.”Z” participated by remote access as before. On November 7, 2012, ”Z” used the account to threaten “A” with dispersing the photograph of her unless she produced another picture. Exhibit 5, the documents relating to the T.K. account, contains the message: “eh girl can I get a flash lol or this pic goes out lol.” Approximately 20 seconds later, the account warns “A”: “u got 5 minutes.”
[62] “A” did not respond. About 20 minutes after the original threat, the T.K. account sends “A” a series of messages: “answer and I wont send it…answer me…and I wont send it…” “A” never responded.
[63] “Y: testified that he and ”Z” had had no discussions about the messaging to “A” before it happened. They had only said they would “joke around with her.” It was “Y”’s evidence that he took the “5 minutes and the photograph goes out” message “jokingly”. In his words he wasn’t really “taken aback by it” because he had “a twisted sense of humour” at the time. He “laughed it off.”
[64] “Y” says he was watching for “A” to respond to the T.K. account and the threat to distribute the images. He got up to make something to eat leaving ”Z” remotely accessed into his computer. He came back from the kitchen, just a few feet away, and saw that “C”, “A”’s former boyfriend, had been sent the photograph. “Y” testified that he then messaged ”Z” to ask what he was doing but received no reply. He then saw ”Z” open up a message to “B” – this must have been “D” – and testified that he should have stopped him but didn’t because he wanted to see what ”Z” was doing. He watched ”Z” do again what he had just done – send out the intimate images of “A” that had been posted to her Facebook page. This time the recipient was “D”.
[65] It was “Y”’s evidence that right after this he did two things: saved the images to his computer and ended “Z”’s remote access. “Y” testified that he messaged ”Z” asking why ”Z” had sent the photograph out. ”Z” “wasn’t really responding” and “Y” blocked him.
[66] “Y” denies sending the “A” images to anyone. He explained the online friendship with ”Z” and his rationale for maintaining it: “I was lonely at the time and he was the only one who would talk to me on a daily basis and I felt I could trust him.” What exactly “Y” felt was trustworthy about ”Z” is unclear. I presume he means that he could trust ”Z” to be a constant in his lonely, isolated life.
[67] The evidence confirms that the “selfies” of “A” were received by “D”, one of “A”’s Facebook friends, and “C”, who went by the online name “C”.
[68] When “C” received the intimate image he messaged “A” on Facebook: “some guy sent me the picture and your messages, um lol” (Exhibit 4) “A” was understandably horrified. The messages associated with the photographs contained sexual content and had not been authored by her. None of what was happening was a joke for “A”.
[69] The images sent out to the “C” and “D” accounts were the “bra-on” and “no-bra” photographs of “A” joined together as a single file. “Y” testified that he did not create this collage and that ”Z” must have done so using Photoshop or a similar program. “Y” acknowledged in cross-examination that when he created the T.K. account he knew ”Z” was capable of sending the intimate images out as he had already posted them to “A”’s Facebook page.
The Extortion Charge
[70] The Crown submits that “Y” was either a principal or a party to extorting “A” on two occasions: (1) the “make it zero” messaging on November 5, and (2) the “5 minutes or it goes out” messaging on November 7. For the sake of clarity I will repeat the messaging, then discuss the law, and then examine “Y”’s role.
“Make It Zero”
[71] On November 5 after receiving the “no-bra” “selfie” from “A”, L.W. angled for another intimate image. This was the messaging as chronicled in Exhibit 1, Tab C, at page 282:
LW: I mean to be sure I don’t you could send another? (;
LW: but either way theres a good chance i wont.
“A”: a good chance. Out of 100, what are the chances of you telling
LW: 25%
LW: make it 0% with another picture if that worries you.
[72] There was a further exchange, to be found in Exhibit 1, Tab C, page 284, shortly after the “make it zero” message:
“A”: you might send the picture
LW: Low chance babe
“A”: but you would
LW: can you send me one more? ;) all i ask
“5 Minutes or It Goes Out”
[73] The messaging from November 7, 2012 is reproduced in Exhibit 5, Tab B, page 8, the documents relating to the T.K. account:
TK: eh girl can I get a flash lol or this pic goes out lol
TK: u got 5 minutes
The Offence of Extortion
[74] The essential elements of the offence of extortion are:
• a threat, accusations, menaces or violence;
• an intent to obtain "anything" by means of the threat, accusations, menaces or violence;
• an inducement or attempted inducement; and
• the absence of reasonable justification or excuse for the use of the threat and the making of the inducement. (R. v. Noël, [2001] N.B.J. No. 264 (C.A.))
[75] In R. v. Davis, [1999] S.C.J. No. 67 at paragraph 45, the Supreme Court of Canada explained the purpose and nature of the offence of extortion:
…Extortion criminalizes intimidation and interference with freedom of choice. It punishes those who, through threats, accusations, menaces, or violence induce or attempt to induce their victims into doing anything or causing anything to be done. Threats, accusations, menaces and violence clearly intimidate: see R. v. McCraw, [1991] 3 S.C.R. 72, at p. 81; R. v. Clemente, [1994] 2 S.C.R. 758, at pp. 761-62. When threats are coupled with demands, there is an inducement to accede to the demands. This interferes with the victim's freedom of choice, as the victim may be coerced into doing something he or she would otherwise have chosen not to do.
[76] It is immaterial that a perpetrator’s threats are unproductive. (Noël, paragraph 9) Threats that amounted to an attempt to extort, in this case, a sexual image from “A”, constitute the actus reus of extortion, “which includes an attempt at inducing any person to do anything or cause anything to be done. The attempt is completed once the offender threatens the victim with a view to extorting or gaining anything.” (Davis, paragraph 59)
[77] That authoritative pronouncement from the Supreme Court of Canada settles the issue of whether the L.W. threat – “make it zero” - and the T.K. threat - “5 minutes or it goes out” - amounted to extortion. In each instance extortion was committed. The perpetrator or perpetrators behind the phony L.W. and T.K. accounts sought to induce “A” to produce additional sexual photographs under threat that her failure to do so would result in the ones already received being disseminated.
“Y”’s Role in the “Make It Zero” and “5 Minutes or It Goes Out” Messaging
[78] It is the Crown’s submission that “Y” either authored the “make it zero” and “5 minutes or it goes out” threats or was a party to ”Z” doing so. It is my understanding that the Crown is not going so far as to concede that ”Z” existed at all, as claimed by “Y”, but I find he did because I accept “Y”’s evidence.
[79] It is useful for me to say at this point that I found no reason to disbelieve “Y”’s evidence. I found him to be a credible witness. As I indicated at the start of these reasons, it was established through his evidence and that of his family members that “Y” is and was a fragile and vulnerable young person with severe social anxiety. That being said and notwithstanding the stressful experience of testifying, “Y” impressed me as someone who took the proceedings seriously and tried his best to be truthful. He was candid and forthcoming and I found nothing to suggest he was being evasive. What I have had to sort through is what “Y”’s evidence, taken as a whole, tells me about his role in the messaging of “A” on November 5 and 7 through the L.W. and T.K. accounts.
[80] Mr. Planetta submits that “Y” was not involved in the extortion of “A”, that he did not type the messages and was not a party to ”Z” creating and sending them. According to Mr. Planetta, “Y” was at most a mere bystander, a role that attracts no criminal liability.
Party Liability
[81] It is well established that mere presence at the scene of a crime does not render a person criminally liable. (R. v. Dunlop, [1979] 2 S.C.R. 881) It is not a crime to stand by passively while a crime is committed. A person becomes a party to an offence by aiding its commission or acting in concert with a co-perpetrator.
[82] The Crown is required to prove beyond a reasonable doubt that “Y” either committed the extortion of “A” through his own actions directly, e.g. typing the extortionate messages, or that he aided or abetted ”Z” in relation to either or both of the “make it zero” and “”5 minutes or it goes out” messaging. (section 21(a), (b) or (c), Criminal Code) The Crown
…is not required to prove the degree of involvement of each individual as long as it is established that each of the persons actually committed the crime, or did something for the purpose of aiding or abetting any person in committing the crime. It would be impractical and at times impossible to delineate and define with any exactitude the individual involvement of the participants in certain circumstances…(R. v. J.F.D., [2005] B.C.J. No. 746 (C.A.), paragraph 14)
[83] Party liability can also be made out under section 21(2) of the Criminal Code which provides that “…a person who forms an intention to carry out an unlawful purpose in common with other persons is a party to an incidental offence committed by one of those other persons to the same extent as the person who actually committed it.” (R. v. Gauthier, [2013] S.C.J. No. 32, paragraph 44)
“Make It Zero” – Is “Y” Culpable for this Messaging?
[84] “Y”’s testimony establishes that he afforded ”Z” access to his computer by remote access for the purpose of messaging “A”. “Y” played an active role, testifying that the typing of the messages using the L.W. account was shared approximately equally between him and “Z”.
[85] “Y” was asked on direct examination about the “make it zero” messaging. He did not recall it. On cross-examination when the messaging was put to him again he said he remembered that “A” had wanted some assurances that the “no-bra” photograph would not be sent out. He testified he was not sure he had been the author or ”Z” but agreed he was present when the messaging was made. “Y” responded with a clear “yes” when Mr. Heerema asked him: “And just to be clear, it’s either you’re punching the keys or watching this being typed?”
[86] “Y” hesitated a few seconds before answering Mr. Heerema’s next question about the “make it zero” messaging: “So here at this point you are essentially trying to convey to “A” - we have this and it can be sent, give us another picture.” “Y” responded: “I was there for it, yes.”
[87] On re-direct, “Y” again said he had no recollection of the “make it zero” messaging.
[88] I have carefully considered “Y”’s responses about the “make it zero” messaging and concluded that they are not inconsistent. He did not ever say he specifically recalled the messaging; what he said is that he was there when it was being typed. He recalls that he was present. And his presence was, I find, more than mere presence. Even if there can be said to be doubt about whether “Y” did the typing himself, by permitting ”Z” remote access to his computer and enabling him to assume the identity of L.W., “Y” was essentially holding the door open for “Z”. Even if he didn’t type the actual message, he aided ”Z” doing so. “Y” was not just a passive, uninvolved observer of a crime. He facilitated the crime by holding the door and letting ”Z” through. He stayed involved in their joint project to “annoy” “A”, a project that had been intensely focused on getting intimate images of her, with some success.
“5 Minutes or It Goes Out” - Is “Y” Culpable for this Messaging?
[89] “Y” admitted creating the fake T.K. Facebook account. He saw ”Z” type the “5 minutes or it goes out” message of November 7. He knew at this point that ”Z” had posted the images to “A”’s Facebook page. “Y” created the T.K. account after the Facebook posting. It does not appear that he was focused on the implications of what was happening but that does not excuse him. He facilitated “Z”’s access to the “A” photographs, participated extensively in the messaging, and was acquiescent as ”Z” took it all up a notch with a threat to disseminate the photograph unless “A” produced another one.
[90] With the T.K. account, “Y” once again held the door open for “Z”, facilitating the commission of the extortion of “A”.
The Defence of Abandonment
[91] Party liability can be successfully defended against, whether grounded in section 21(1) or (2) of the Code, if certain requirements for the defence of abandonment are met. The Supreme Court of Canada has held there must be:
• An intention to abandon or withdraw from the unlawful purpose;
• A timely communication of the abandonment or withdrawal to those who wish to continue;
• A communication that serves unequivocal notice on those who wish to continue; and
• In a manner proportionate to his or her participation in the commission of the planned offence, the accused must have taken reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence. (Gauthier, paragraph 50)
[92] The circumstances will be relevant, and timely and unequivocal communication by the accused may be sufficient “to neutralize the effects of his or her participation in the crime.” In other circumstances, where the person has aided the commission of the offence, timely communication alone may not be considered reasonable and sufficient to meet the requirements for successful application of the defence. (Gauthier, paragraph 51)
[93] The positive social policy underpinnings to the defence of abandonment have been illuminated by the Supreme Court of Canada in its judgment in Gauthier:
…First, there is a need to ensure that only morally culpable persons are punished; second, there is a benefit to society in encouraging individuals involved in criminal activities to withdraw from those activities and report them. (Gauthier, paragraph 40)
“Y” and the Extortion of “A”
[94] I am not satisfied the Crown has proven beyond a reasonable doubt that “Y” was the author of the “make it zero” or the “5 minutes or it goes out” extortionate threats to “A”. It may have been ”Z” who typed the “make it zero” message as L.W. and, having accepted “Y”’s testimony as credible, I am satisfied that it was ”Z” who messaged “A” from the T.K. account that she had 5 minutes to send another photograph “or this pic goes out lol.”
[95] The issue is therefore whether “Y” is liable as a party to the extortion. I find that he is. I am satisfied beyond a reasonable doubt that he aided “Z”’s messaging of “A” by permitting him to use the remote access program to communicate with her. He was clear in his responses on cross-examination: he knew “A” wanted to be reassured that her photographs would not be disseminated and he confirmed that he was present when ”Z” made the extortionate “make it zero” proposal. He did not then disconnect ”Z” and discontinue his association with him. He carried on in aid of their joint purpose, to play “A” for their own perverse amusement.
[96] On November 7, two days after wringing the “no-bra” photograph out of “A”, “Y” knew ”Z” had posted the image to “A”’s Facebook page. Even then he chose to continue to collaborate with ”Z” in toying with “A”. He permitted the ongoing use of the remote access and created yet another fake Facebook account, the T.K. account. He saw the “5 minutes or it goes out” message which he “laughed off.” This was in spite of having had plenty of exposure to the fact of “A”’s fragility – her suicidal messages and the attempt she made on her life when B.P. was killed off. He waited for “A” to respond, obviously curious to see how she would react to this latest provocation. He was watching to see what more would be spun out of the deceitful web which he and ”Z” had used to trap “A”. This is not passive presence, it is conduct that makes “Y” a party to the extortion of “A”. A defence of abandonment has no support in the evidence.
[97] I find, in accordance with the New Brunswick Court of Appeal in Noël that the original extortion charge should be amended to read: “without reasonable justification or excuse and with intent to obtain photos, did attempt to induce “A”, to produce photos of “A” by threats, contrary to section 346(1.1) of the Criminal Code.” (Noël, paragraph 17) There is no prejudice to “Y” as a result of this amendment.
Possession for the Purpose of Distribution
[98] The remaining issue is whether the Crown has proven beyond a reasonable doubt that “Y” possessed the intimate images of “A” for the purpose of distributing them. The evidence establishes that “Y” possessed the photographs jointly with “Z”, that is, they each had knowledge of the photographs and control over them. (R. v. Morelli, [2010] S.C.J. No. 8, paragraph 15) “Y” saved the images more than once and stored them securely on his computer. ”Z” was able to post the images to “A”s’ Facebook page, which “Y” says was not done from his computer, and disseminate them to “C” and “D”.
[99] There is no direct evidence about “Y”’s intention in relation to his possession of the photographs. I have to draw inferences from the evidence of what happened with the photographs while they were in his possession. As I have noted in relation to the extortion offence, “Y” was not merely passively present when ”Z” distributed the images. He aided ”Z” by allowing him to remotely access his computer and he maintained “Z”’s access through three postings of the photographs. After the dissemination to “C” – about which “Y” testified, “I guess I should have stopped it there” - “Y” watched to see what ”Z” was going to do when he opened a message to “D”.
[100] The Crown has argued that one basis for establishing “Y”’s mens rea on the possession for the purpose of distribution charge is wilful blindness. “The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.” ((R. v. Briscoe, [2010] S.C.J. No. 13, paragraph 21)
[101] Has the Crown proved “Y”’s mens rea (the intention to distribute) on the basis of wilful blindness? Wilful blindness has a very limited scope. It applies where it can almost be said that the accused actually knew. Is there a basis to conclude that “Y” suppressed a compelling suspicion that ”Z” intended to distribute the images and that he refrained from obtaining final confirmation because he wanted to be able to deny knowledge of what ”Z” was about to do? (R. v. Jorgensen, [1995] S.C.J. No. 92, paragraph 102)
[102] I am not persuaded that wilful blindness has been proven on the evidence in this case. I have not found any evidence that “Y” “…shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” of “Z”’s imminent photo distribution. (Briscoe, paragraph 21 citing Jorgensen, paragraph 103)
[103] Indeed I find that “Y” chose to keep his eyes open. The only reasonable inference to be drawn from the evidence is that “Y” knew what ”Z” was poised to do with “D” and maintained the remote access to see if that is what would unfold. He knew that ”Z” had opened up a new front in the campaign against “A”: he had posted the images to “A”’s Facebook page and sent them to “C”. “Y” hadn’t just acquired the intimate images from “A” and cut off access to “Z”, savouring the images for his own private purposes. He continued to collaborate with ”Z” to engage “A” further and remained involved while ”Z” used the photographs to even more dramatic effect.
[104] Obtaining the photographs had afforded “Y” and ”Z” some sport but the potential they offered had not been exhausted. Two photographs had not dulled their appetites. The opportunity to extract more or at least continue the harassment of “A” lay invitingly before them. Stringing “A” along with offers to reveal L.W.s’ true identity had already produced a satisfactory result. The T.K. account, created by “Y”, was used to try and induce another photograph out of her. “A” continued to be the target of a joint enterprise by ”Z” and “Y”; anyone else was peripheral, used to keep the main event going, the main event being the torment of “A”. “Y” was not merely a disinterested observer throughout. He watched as ”Z” raised the stakes in their on-line game.
[105] “Y” had his limits though, reaching them before ”Z” reached his - if he had any, and literally pulled the plug. I find it was too late by then. I am satisfied beyond a reasonable doubt that when “Y” cut off the remote access he was already a party to the possession of the photographs for the purpose of distribution.
[106] “Y” and ”Z” had joint possession of the “A” photographs that got posted to her Facebook page and sent to “C” and “D”. “Y” testified about the “A” Facebook posting that he “wasn’t really for it” but he kept his hand in the game. He didn’t send the images to “C” but he saw ”Z” had done so. Leaving the remote access on, he watched as ”Z” opened a message to “D”. “Y”’s testimony indicates he wanted to know why ”Z” had sent the images to “C” but had got no reply. He watched as ”Z” took his next step, using the remote access to “Y”’s computer.
[107] To be fixed with criminal responsibility for the “possession for distribution” charge, “Y” did not have to understand the “why” of what ”Z” was doing, what he was trying or hoping to accomplish, and he did not have to be enthusiastic about the photographs being sent out. He also did not have to have originally possessed the photographs for the purpose of distributing them. I am satisfied the evidence establishes that the purpose for the possession of the images evolved – from simple possession to possession for the purpose of distributing them as another tactic in the merciless campaign against “A”. It doesn’t matter that on his own “Y” may never have distributed the photographs. He continued to act as “Z”’s accomplice even once he knew ”Z” was sending the photographs out. All “Y” had to do was shut the remote access door. He didn’t. His decision not to makes him a party to “Z”’s possession of the photographs for the purpose of distributing them.
Conclusion
[108] I find the Crown has proven the all three charges against “Y” beyond a reasonable doubt and I therefore convict him of:
• Amended Count 1, that at or near Halifax, Nova Scotia, between November 2, 2012 and November 14, 2013, “Y” , without reasonable justification or excuse and with intent to obtain photos, did attempt to induce “A”, to produce photos of “A” by threats, contrary to section 346(1.1) of the Criminal Code;
• Count 2, that at the same time and place, “Y” had in his possession child pornography, photographs of “A”, contrary to section 163.1(4) of the Criminal Code; and
• Count 3, that at the same time and place, “Y” did unlawfully have in his possession for the purpose of distribution, child pornography, “photos of “A””, contrary to section 163.1(3)(a) of the Criminal Code.
[109] In concluding these reasons I want to note, specifically for “Y”’s benefit, that we have a separate criminal justice system for young persons because they are understood to have “heightened vulnerability, less maturity and a reduced capacity for moral judgment.” (R. v. D.B., [2008] S.C.J. No. 25, paragraph 41) It is recognized that young people often lack foresight and have a limited capacity for appreciating the consequences of their actions. While there must be fair and proportionate accountability for wrong-doing, the youth criminal justice system seeks to promote rehabilitation, learning from mistakes, and moving on. The mistakes one makes as a young person do not have to define the adult one becomes.