Tracking the Trends in the Supreme Court’s Engagement with Internet-Based Child Sexual Exploitation: Reconciling the Recent Decisions in Morelli and Legare

In September, I wrote my first post on this site on the occasion of the tenth anniversary of the first appearance of the word “internet” in the Court’s jurisprudence. In that post, I offered some commentary and analysis on the Court’s engagement with the internet age thus far and how it has impacted its reasoning. I thus find it fitting to close out my tenure as a contributing editor on this website by returning to the topic of my first post, particularly as there have recently been some more notable developments in this area.

For instance, my colleague Ahsan Mirza recently reviewed the very interesting decision in R v Morelli, 2010 SCC 8 [Morelli], and analyzed the Court’s reasoning with respect to the criminal possession of digital images. In that case, it will be recalled, the Court considered such questions as whether having a copy of an image stored in one’s web browser’s cache, or similarly as an attachment to a message in a web-based email account, could constitute possession for the purposes of s. 4(3) the Criminal Code, RSC 1985, c C-46.

This debate between Fish J. for the majority and Deschamps J. for the dissent is certainly a very interesting illustration of how the Court has had to adapt the law to new and often unfamiliar contexts in the internet age. However, for this post I would like to focus instead on what has long been an interesting thread in the Court’s internet jurisprudence, and an issue which also happens to be of particular personal interest: to address the proliferation of internet-based child sexual exploitation.

Particularly, I would like to compare and contrast Morelli with another decision where Fish J. wrote for a (here unanimous) majority of the Court: the decision in R v Legare, 2009 SCC 56 [Legare]. Although the decisions were released a few short months apart, curiously they do not appear to reflect a consistent approach to the problem of internet-based child sexual exploitation.

The Decisions

In Morelli, the accused had been charged with possession of child pornography after authorities found pornographic images of children on digital media in his possession. The appeal at the SCC turned on whether the police had reasonable grounds to conduct a search of the accused’s computer. A computer technician had visited the accused’s residence to install a high-speed internet connection, and had spotted links to sites labeled “Lolita Porn” and “Lolita XXX” in the “Favorites” list on the web browser.

The majority found that the police did not have reasonable grounds to believe that evidence of an offence would be found on the computer, particularly as the technician had returned a few days after his first visit and found the hard drive formatted. They further held that the evidence should be excluded under section 24(2).

The dissent in Morelli was composed of Deschamps, Charron, and Rothstein JJ. This combination has also teamed up for minority opinions going against the accused in notable cases such as R v DB, [2008] 2 SCR 3, R v Illes, [2008] 3 SCR 134, and R v Dudley, 2009 SCC 58. Here, they argued that there were reasonable grounds for the search, noting other factors such as the fact that there was a small child in the same room and a camera set up pointing at the child’s play area and toys.

(The majority noted, however, that the child was the accused’s daughter and that the camera was not attached to the computer and therefore was not evidence that images recorded by it would be on the computer. Although such formalistic logic is curious, as it could equally be applied to argue that reasonable grounds to search a computer do not constitute reasonable grounds to search surrounding media such as DVDs or external hard drives.)

The decision in Legare, meanwhile, was reviewed most recently on this site by Benjy Radcliffe here. In short, the accused engaged in two sexually explicit online chats with the complainant, who at the time was 12 years old but claimed she was 13. The accused was charged with a digital-age offence that criminalizes using a computer to communicate with a child for the purpose of facilitating the commission a sexual offence against that child. The question was whether the mens rea of the offence included an intent to actually commit that sexual offence. The Court took the more lenient approach to the mens rea requirement and ruled that it did not.

Analysis

It is clear that the Court in Legare took a tough stance towards the criminal behaviour in question. Their finding – that an offence criminalizing behaviour even more remote than attempt from the principal sexual offence did not even require the mens rea of having the intention to actually commit that offence – is nothing short of remarkable. Recall, further, that the principal offence in question may not even be an offence by the time it is eventually “committed”; for instance, in Legare, the age of consent at the time of the online chats was 14 and the complainant had represented that she was 13. This decision certainly reflects a very strong-handed approach to internet-based child sexual exploitation.

This stands in stark contrast to the decision in Morelli. The majority found no reasonable grounds to perform the search despite the links to child pornography websites in the accused’s “Favorites” toolbar, as well as other factors highlighted in Deschamps J.’s dissent. They further excluded the evidence under the new test from R v Grant, 2009 SCC 32 [Grant], despite the reliability of the evidence and the seriousness of the offence. This they did in part by placing a curiously strong emphasis on the privacy interests raised by a computer search. As Fish J. wrote:

It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

I am not sure I am convinced by this passage. Particularly I do not think it is so “difficult to imagine” a search more intrusive or invasive of one’s privacy than the search and seizure of one’s computer. On the contrary, intrusive as a computer search may be, I feel it is rather easy to imagine one that is more intrusive. Besides, this statement seems to be inconsistent with the hierarchy of privacy interests that the Court established in R v Tessling, [2004] 3 SCR 432, under which, as between personal, territorial, and informational privacy, “[p]rivacy of the person perhaps has the strongest claim to constitutional shelter.” According to this hierarchy, any search that affects privacy of the person ought to attract stronger Charter scrutiny than a search of a computer, which implicates only informational or perhaps territorial privacy.

Thus, the privacy interest at stake here, while important, was perhaps overstated a bit by the majority. In this light, it is difficult to reconcile the prioritization of this interest over the need to prevent internet-based child sexual exploitation with the decision in Legare, in which the Court accorded enough weight to the very same considerations to justify setting an extraordinarily low mens rea requirement for a criminal offence with a high degree of associated stigma.

While it could be said that the offence in Morelli involved mere possession of pornography whereas the one in Legare was more serious in that it involved the potential commission of an actual sexual offence against a child, it is critical here to remember that child pornography bears a much closer relationship to sexual offences against children than adult pornography bears to sexual offences against adults. The Court has itself recognized these dynamics in cases like R v Sharpe, [2001] 1 SCR 45. Child pornography actually depicts sexual offences against children and is used to fuel such fantasies.

Moreover, it is often used as a tool to “groom” and seduce victims by making them believe that such behaviour is normal. Further, the production of child pornography itself (except where animated or otherwise artificially generated) involves the commission of actual sexual offences against children. And the ease with which child pornography can propagate over the internet means that the child’s initial victimization can reverberate for decades, every time a pornographic image is viewed. As the Court itself pointed out in R v L.M., [2008] 2 SCR 163:

Once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world.  R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday.

Conclusion

Perhaps the difference then is one of giving effect to legislative intent. Unlike in Morelli, the question in Legare involved the interpretation of a provision enacted specifically to prevent internet-based child sexual exploitation. It is well known that Canada’s legislation is one of the most aggressive and proactive in the world in this regard. In interpreting the provision in Legare, the Court was perhaps giving special consideration to Parliament’s policy objective, whereas this factor was not in play in Morelli. If this is the case, it is yet more evidence to put to bed any notion that our top court is one that espouses “judicial activism.”

Or ultimately, perhaps this is all explained simply by our current Court’s penchant for swinging one way before swinging the other. Their objective may have been to signal lower courts not to give overriding weight to concerns of internet-based child sexual exploitation after Legare, or alternatively not to admit evidence obtained in a manner that infringed the Charter too eagerly after last summer’s decision in Grant.

Whatever the case, it is intriguing to reflect on the outcome in Morelli in light of the Court’s decision in Legare. While they may not be conflicting outcomes from a legal perspective, they certainly prevent a striking contrast, just a few months apart, in terms of the Court’s engagement with the problem of internet-based child sexual exploitation.