Dutil, Cotnam, Weitzman

Appeal from conviction. Dismissed.

The appellant appeals from a judgment convicting him of possession of child pornography, for possessing a silicone doll with a child’s features and three orifices for the mouth, vagina, and anus. The trial judge dismissed his motion to exclude evidence. Next, she concluded that the doll’s dominant characteristic was the depiction of a female child’s sexual organs and anal region for a sexual purpose (s. 163.1(1)(a)(ii) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). The doll therefore met the definition of “child pornography”. The judge also rejected the appellant’s defence of a legitimate purpose related to art, which maintained that he intended to use the doll as a mannequin to create a photo blog featuring historical clothing.

The judge did not err in dismissing the motion to exclude evidence. Although the information did not contain a copy of the photograph of the doll or mention it’s size, it contained enough credible and reliable evidence to issue a search warrant.

This is a unique case, and there are few case precedents as most child pornography charges involve graphic depictions such as photographs, videos, or written material. In this case, the dominant characteristic of the object at issue is not, prima facie, the depiction, for a sexual purpose, of sexual organs or the anal region of a female child. Unlike a photograph or a film, the sexual organs are not prominent. However, the functional aspect of this doll’s sexual organs or of the anal region must be considered. The doll is designed to replicate a female child’s body for the user’s sexual gratification. Therefore, the judge did not err in finding that the doll’s dominant characteristic was a depiction of a female child’s sexual organs and anal region for a sexual purpose.

As for the defence of a legitimate purpose related to art set out in s. 163.1(6)(a) Cr. C., there is no doubt that photography can satisfy the definition of “artistic merit”. Moreover, even though in this case, the work of art is not the doll, which was only intended as an accessory to his creation, this defence could nevertheless be raised. The broad interpretation that must be given to this defence makes it possible to consider an art project that will be created - but has not yet been created - using material that constitutes child pornography. When this defence’s air of reality has been established, which is the case here, it is up to the prosecution to rebut it beyond a reasonable doubt.

It is true that the judge committed several errors in the assessment of the appellant’s credibility. First, she could not speculate on his intention to use the doll for sexual purposes. That error, however, and the absence of sperm on the doll, have no impact on the judge’s conclusion, since the respondent had only to establish possession without a legitimate purpose. Next, the judge could not determine what was required to create a photographic work by commenting on the choice of mannequin. That error was not decisive, however, because she relied on several other pieces of evidence to conclude that she did not believe the appellant. The judge did not err in dismissing this defence.

Legislation interpreted: 163.1(6)(a) C. Cr.

Text of the decision: http://citoyens.soquij.qc.ca