Crown:  B. Davies, Office of the Crown Attorney, Oshawa
Defence:  Craig Penney, Toronto Child Pornography Lawyer, Toronto

¶ 1  THE COURT:  This is my ruling on the Charter application for disclosure of digital image files brought on behalf of Mr. R.J.

¶ 2  I considered all of the evidence and arguments in the matter. I see no reason in law or in policy to depart from the legal principles as they are articulated by Justice Watt in [A.B.'s Case]. There he articulates the competing rights that have to be balanced and it frames the legal issue for myself to be whether an appropriate undertaking cannot satisfy the privacy and public interest concerns, that would otherwise justify overriding the clear prima facie right of the defense to a copy of the evidence relied upon by the Crown to convict him.

¶ 3  There is no issue here that the requested documentation is relevant, that no privilege exists and that the material is discloseable. The issue is what form that disclosure should take place in. The pictures filed would be considered, to the children displayed in them and to reasonable members of the public, to be highly sensitive and personal in nature. Accordingly, there is a high expectation of privacy and a high public expectation that the photographs would be treated in a manner which eliminates or minimizes any re-exploitation of the individuals displayed in them.

¶ 4   The sample of the images appear to depict a large number of different victims and are photographic likenesses of people as opposed to drawings or other less identifiable representations of them. The nature of the images increases the identifiability of the victims and heightens the privacy concerns of the individual and the public concern over any additional copying of them.

¶ 5   Notwithstanding those concerns, in my view, the balancing here goes in favour of the defense. The images appear to have been available on an Internet website and accordingly, accessible to a large number of people.

¶ 6  In my view, the infringement of these individuals' rights must be looked at in the context of the incremental nature of the harm associated with an extra copy being made. That may be very high in some cases, particularly, we can visualize where individuals are relatively identifiable and are perhaps clearly associated with an accused individual. There's no indication or no suggestion that the incremental nature of the disclosure here will be of an extremely high nature.

¶ 7  There may be viable issues warranting a careful examination of the images by the defense although the Crown argues some of the photographs are overwhelmingly clearly child pornography, that will not necessarily be the issue for the defense. The proportion of the photographs that are child pornography may be critical to establishing a lack of knowledge in their existence or may be a significance on a sentencing phase of proceedings at some point.

¶ 8  The defense, in my mind, are entitled to have their experts characterize the images to determine whether the proportion is 2.4% instead of 24% or zero percent, if that might be the case, or the ability of their expert to so convince the Court.

¶ 9  As well, a careful comparison of the Germany images to the hard drive images may be justified to raise a reasonable doubt about the source of the images which I'm referring to as the Germany images.

¶ 10  The number of images, as well, here makes viewing under the supervision of the police impractical even if it's obviously in the private viewing under the supervision of the police, impractical. If even 10 minutes were spent viewing, considering and making notes of an image by an expert, his work could well occupy many months in light of the number of images that are involved here. In my opinion, the condition suggested by Justice Watt in [Dwayne's case] and proposed by Mr. Penney in this case provide, in our circumstances, for appropriate controls over the material that would be, in the eyes of the victims and the public be seen to be respecting their interests in a sensitive way.

¶ 11  At the risk of quibbling, I would order that the word 'securely' be inserted before the word 'retains' in both paragraphs number one and number two of the proposed conditions.

¶ 12  To emphasize that the items must be securely retained by counsel or his expert.

¶ 13  I'll leave the format of the production to counsel. I certainly can be spoken to with respect to that.

¶ 14  I don't know, with respect to an actual trial proceeding, whether hard copy as opposed to CD copies are going to be a more practical means of dealing with them in Court and for counsel as they're progressing through this matter.

¶ 15  If there's any dispute between counsel as to how that's best to be done, I certainly can be spoken to with respect to that.

¶ 16  Accordingly, the application insofar as it goes for a copy of the disclosure will be granted.