Regina v. Hurtubise

Between 

Her Majesty the Queen, respondent, 

and 

Brenda Elaine Hurtubise and Gerald Joseph Hurtubise, appellants 


[1997] B.C.J. No. 40
New Westminster Registry No. X045651/X045652 

British Columbia Supreme Court
New Westminster, British Columbia
Smith J. 


Heard: December 9, 1996.
Judgement: filed January 10, 1997.
(11 pp.) 

Counsel: 

P. Gulbransen, for the plaintiff.
G. Dickin, for the defendant. 


SMITH J.:-- These are appeals from convictions registered against the appellants
after a joint trial on several counts laid under section 163(1)(a) and section
163.1(2) of the Criminal Code, which provide as follows: 

163. (1) Every one commits an offence who 
(a) makes, prints, publishes, distributes, circulates, or has in his possession
for the purpose of publication, distribution or circulation any obscene written
matter, picture, model, phonograph record or other thing whatever. . .
. . . 

163.1 (2) Every person who makes, prints, publishes or possesses for the purpose
of publication any child pornography is guilty of
. . .
(b) an offence punishable on summary conviction. 


Counsel for the appellant made no distinction between the appellants on the
appeal. The grounds of appeal are identical and are set out as follows in the
notices of appeal: 


1. The learned Trial Judge erred in finding that the Appellant was in possession
of obscene materials and child pornography for the purpose of distribution. 

2. The learned Trial Judge erred in finding that the Appellant had failed to
exercise due diligence in his efforts to avoid possessing obscene materials and
child pornography. 

3. The learned Trial Judge erred in finding that the subject matter of count 19,
a graphic representation entitled "1st Time.GIF", constituted child pornography.



The facts giving rise to the charges are set out concisely in the reasons for
judgment of the trial judge as follows: 

In 1992, Gerald Hurtubise started a local computer bulletin board, YOUR
Neighbourhood BBS, as a hobby. Gerald Hurtubise was the system operator, looking
after the technical aspects. His wife, Brenda Hurtubise, began to assist him and
became responsible for the public relations side. A local computer bulletin
board is a computer information sharing system with modem access. YOUR
Neighborhood BBS was a family oriented bulletin board for general access without
INTERNET access. Running YOUR Neighbourhood BBS took a considerable amount of
effort but Gerald and Brenda Hurtubise testified they obtained a great deal of
satisfaction from running the local bulletin board. 

In 1993 in response to requests from their users, the Hurtubise's set up another
computer bulletin board, CYBER Playground BBS, for adult users which was to
contain pornography. Gerald and Brenda Hurtubise made some efforts with other
operators of adult bulletin boards to determine how to operate the adult
bulletin board within the law to restrict access to adult users. Although there
were no clear guidelines from any regulatory body, the Hurtubise's restricted
access by requiring verification that the user was an adult. Only on being
satisfied that the user was an adult, would he or she be allowed access to CYBER
Playground. 

CYBER Playground became quite popular. By March, 1995, Gerald Hurtubise
estimates that over 1000 users had access to CYBER Playground. Approximately 250
users had been verified as adult by the Hurtubise's but access was given to
others who had been verified by other adult local bulletin boards. (There were
some 6 to 10 other local adult bulletin boards by March, 1995.) According to
Gerald Hurtubise, CYBER Playground was the biggest and most noticeable. 

In November, 1994, Detective Tiessen located CYBER Playground and accessed it on
his computer. Initially, he was denied access to the local bulletin board until
he sent in proof of age which he did by using an alias. He also made a donation
of $15.00 to have more than 60 minutes usage per day. In December, 1994, after
receiving the password, Detective Tiessen began to download files from CYBER
Playground to his personal computer. He downloaded files on several occasions in
December 1994 and January and February, 1995 finding the offensive material
which is the subject matter of the counts before the Court. 

On March 1, 1995, Detective Tiessen and Constable Kirby obtained a search
warrant for the Hurtubise residence. Upon executing it, the police officers
found the system that was operating CYBER Playground. The Hurtubise's were
operating the local bulletin board with 1 personal computer with a CD ROM and 2
modems. The CD ROM contained the CD "T&A2THEMAXX", which made its contents
available through CYBER Playground to users of CYBER Playground and the other
local adult bulletin boards. The CD contained 3100 graphic files in 11
directories and 800 text files in 8 directories. All users with access could
scan the CD's directories and access the files or graphics including downloading
the files or graphics to their computers. Once the files or graphics were
downloaded to individual computers, they could be copied to disk or uploaded to
other computer bulletin boards. 

On the first ground of appeal, counsel for the appellants argued that the trial
judge erred in concluding that the appellants were "distributors" of obscenity
within s.163(1)(a). He conceded that the materials in question are obscene and
contended that the trial judge should have concluded that the appellants were
"sellers" or persons exposing the obscenity to public view within the provisions
of s.163(2)(a), which provides: 

163. (2) Every one commits an offence who knowingly, without lawful
justification or excuse, 
(a) sells, exposes to public view or has in his possession for such a purpose
any obscene written matter, picture, model, phonograph record or other thing
whatever. . . . 

If the appellants were sellers within s.163(2)(a), they could not be found
guilty unless the Crown proved knowledge that the material was obscene, whereas
a distributor of obscenity may be found guilty in the absence of due diligence.
The difference in treatment is identified in the following passage from R. v.
Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.) at pp.123-24: 

In reviewing the history and purpose of s.163 it is useful to note the
distinction that the Code makes between those who produce or distribute obscene
materials and those who sell or retail such materials. 
. . . 

It is immediately apparent that in the case of producers and distributors, the
actus reus need not be committed knowingly, whereas in the case of sellers and
retailers it is an essential element. 

Counsel for the appellants relied particularly on the passage at p.125 of the
judgment: 

In my view, there are sound reasons for such a distinction. Producers and
distributors can be presumed to be familiar with the content of the material
that they create or distribute. Furthermore, if the law casts upon them the
obligation of being familiar with the material they make or distribute, that can
easily be discharged. On the other hand, a seller of pornographic material may
include among her merchandise magazines, books, and myriad of other products.
Until the materials arrive at the seller's shop, he or she has had nothing to do
with the material. It might be suggested that the seller can ask the distributor
or producer about content when the material is ordered. This is not likely to
produce a helpful response. Anyone in the business of producing or distributing
pornographic material for profit is not likely inclined to scare off buyers by
telling them his or her product can potentially subject the potential purchaser
to criminal liability. It would, therefore, be perfectly reasonable for
Parliament to have assumed that the seller would ordinarily not be aware of the
specific nature of the contents of the material sold, in which circumstances
imposing criminal liability would result in the conviction of many persons who
did not possess a blameworthy state of mind. 

Conversely, the producer or distributor will generally be aware of the contents
of the material which may result in its being found to be obscene. The
imposition of criminal liability in the absence of knowledge of the contents
will be less likely to result in the conviction of those that are mentally
blameless. In addition, a producer or distributor who knows that absence of
knowledge in default of a reasonable inquiry cannot be relied on can easily find
out what the material contains. On the other hand, it would be unreasonable to
expect the seller to read every book or magazine and view every video or film to
ferret out the portions that may run afoul of the obscenity provisions. 

Appellants' counsel referred in argument to R. v. Dorosz (1971), 4 C.C.C. (2d)
203 (Ont. C.A.) for the proposition that the appellants were in a position
analogous to that of the operator of a retail video store who would be, as a
matter of law, a seller and not a distributor of obscenity. I do not read Dorosz
to support that proposition. The issue there was whether, as a matter of law,
evidence of the possession of obscene material for the purpose of sale by a book
store proprietor constituted evidence of possession for the purpose of
distribution. The Court held that such evidence would not justify a finding of
possession for the purpose of distribution in the absence of further supporting
evidence. 

The Court in Dorosz reasoned that, in amending the Code in 1949 to make
distribution a strict liability offence, Parliament's purpose was to control the
proliferation of obscenity by making it easier to obtain a conviction for that
offence. Brooke, J.A., writing for the majority, said at p.213: 

The obvious [evil to be remedied] was the problem of proving the state of mind
of persons to be charged and so to control the proliferation of obscene matter
at which the section was directed. The remedy was to reclassify certain of the
activities in the previous section as being of such moment as to require for
their control not only the removal of the necessity of proof of the element of
mens rea, but the denial as a defence to the accused of his ignorance as to the
nature or presence of the matter in relation to which the offence was said to
have been committed. 

Accordingly, Parliament drew a line through the chain from production to
consumption. It drew the line immediately preceding those who may sell to the
ultimate consumer and left only that conduct and related conduct as it stood
before the change. 

Who is the "ultimate consumer" and where the accused stands in the
production-consumption chain, however, are questions of fact in each case and do
not depend on whether the accused is a "retailer" or a "wholesaler". Brooke,
J.A. alluded to that at p.209 of his reasons where he approved of the
application of the authorities referred to by the trial judge, and said: 

The facts in each of those cases are quite different from the facts in the case
at bar. In the cases referred to, each accused was found to be a distributor not
because he engaged in the sale of books which were found in his possession, but
rather because the nature of his business was characterized as being that of one
who is a distributor of books whether by sale or otherwise. 

Accordingly, I do not agree with the submission that, if they were in a position
analogous to an operator of a retail video store, as a matter of law the
appellants cannot be considered to be distributors of obscenity. Whether they
were or were not distributors must be determined by examining their conduct in
the light of the prevailing circumstances. The objective of the inquiry is not
to identify the status of the appellants in the production-consumption chain,
although that status may be a helpful guide, but to determine whether their
activities were of the type leading to the proliferation of obscenity that were
the target of the 1949 amendment. 

The trial judge focused on the conduct of the appellants and its effect on the
proliferation of obscenity, and recognized that their status in the
production-consumption chain was not necessarily determinative. She said: 

The Concise Oxford Dictionary (1982) defines "distribute" amongst others as:
"deal out, give share of to each of a number; spread about, scatter, put at
different points, divide into parts, arrange, classify"  The local bulletin
board, CYBER Playground, which allowed access to over 1,000 users, although not
at one time, must clearly fall within this definition of distribute. The
dichotomy described in Regina v. Dorosz, supra, between the last person in the
chain to the consumer, between a retailer and a wholesaler, is a distinction
which is applicable to and makes sense with print material, but not one which is
necessarily applicable to computer technology. 

A look at the purpose of the legislation does not suggest this is a case where
the clear dictionary meaning of 'distribution' should not be applied. By making
a CD accessible through a local computer bulletin board, the contents of the CD
become readily accessible to multiple computers. Around each computer, there
could be multiple users. The contents of each file on the CD can, of course, be
downloaded, kept on computer, copied to another disk, uploaded to other systems,
or put into hard print. This is not, in my view, analogous to an individual
retailer who is selling individual copies, even if multiple copies, of books or
movie video cassettes. 

In my view, she dealt with this issue correctly. 

The trial judge went on to find that the appellants possessed the CD
"T&A2THEMAXX" and the files recorded on it for the purpose of distribution
within the meaning of s.163(1). Her conclusion was a finding of fact with which
I may not interfere unless satisfied that a properly instructed jury, acting
judicially, could not reasonably have reached the same conclusion: R. v. Yebes,
[1987] 2 S.C.R. 168. There was ample evidence to support the trial judge's
finding and this ground of appeal must fail. 

The next ground of appeal asserted is that the trial judge erred in finding that
the appellants failed to meet the burden of showing on a balance of
probabilities that they exercised due diligence. In this regard, the trial judge
found: 

On the evidence before me, I am satisfied that the Hurtubise's were negligent
and did not act with due diligence. Although they made efforts to ascertain how
they could restrict access to adult users, they made no effective inquiries as
to content. They did not obtain any advice as to the meaning of "obscenity" and
did not distinguish between pornography and obscenity. They did, however,
clearly recognize that some of the material which people were transmitting was
offensive. Gerald Hurtubise testified that when he cleared out his upload
directory, he was offended by the material he saw. Even after being alerted to
the kind of material that his users were familiar with and that could be
transmitted on computer, he did not consider reviewing his own CD. Accepting the
Hurtubise's evidence, they made no effort whatsoever to review the material on
the CD. They did not review the file names in the directories, any sampling of
the material on the CD, nor ever look at what was contained on the CD. They made
no inquiries into the contents of the CD, other than a cursory effort to ensure
it was obtained from a Canadian dealer. They testified that they assumed if the
CD was bought from a Canadian dealer, it would have passed through Canadian
Customs and therefore would not be illegal. They did not make any efforts to
confirm this assumption was correct. 

The conclusion that the appellants were negligent and failed to act with due
diligence is one of fact that the trial judge was entitled to make on the
evidence before her. This ground of appeal must fail as well. 

The final ground of appeal is that the trial judge erred in finding that the
representation entitled "1ST TIME.GIF" constitutes child pornography as that
term is defined in s.163.1(1)(a)(ii), which provides: 

163.1 (1) In this section, "child pornography" means 
(a) a photographic, film, video or other visual representation, whether or not
it was made by electronic or mechanical means, 
. . . 
(ii) the dominant characteristic of which is the depiction, for a sexual
purpose, of a sexual organ or the anal region of a person under the age of
eighteen years . . . . 

In this regard, the trial judge said: 

The picture is the representation of a prepubescent girl a full frontal view of
her naked body including her vaginal area. A mature male is beside her pulling
out her underwear although not touching her body. The dominant characteristic of
the visual representation is the depiction of a sexual organ and given the
apparent prepubescent body, I am satisfied it is of a girl under 18. The visual
representation, given where it was located and its title, is clearly for a
sexual purpose. I am satisfied that the visual representation falls within the
definition of child pornography contained in section 163.1(1)(a)(ii). 

The trial judge's description of the picture is accurate. I would add to her
description the fact that the adult male's gaze is focused on the girl's pubic
region, thus drawing the viewer's eyes to that area and making it the dominant
feature of the picture. As well, his mouth is open and her hand is placed on the
back of his head, implying an imminent act of cunnilingus. I am unable to say
that a properly instructed jury could not reasonably reach the conclusion
reached by the trial judge. In fact, I think such a jury would arrive at the
same finding. 


In the result, the appeals are dismissed. 


SMITH J.