R. v. FISHER, 2022 SKCA 78, JULY 8, 2022.

FACTS: The accused was convicted of breaching a section 161 prohibition.  The prohibition order stated as follows:

You are not to use any computer, telecommunications device or similar device to access the Internet or other digital network in order to:

i. Access child pornography;

ii. Access or participate in chat rooms, bulletin boards, websites or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.

The circumstances involved were described as follows (at paragraphs 3 and 4):

Mr. Fisher was residing at Oskana Centre, a federal community correctional centre, pursuant to the terms of a long-term supervision order at the time in question. The facility has a telephone system that allows residents to make outgoing calls. On November 21, 2017, monitoring software was installed on the Oskana Centre telephone system, which permitted staff to access the log of calls that had been made from the phones that were accessible to the residents. In reviewing that information, staff discovered that Mr. Fisher had placed an inordinate number of telephone calls – later determined by the police to be 346 instances – to the same telephone number over a period of 46 days from November 21, 2017, to January 5, 2018. That number belonged to a chat line service named Interactive Male.

Interactive Male is a chat service that required its members to be adults, pay a fee and access the system using their own unique identification number and password. Once a person joins Interactive Male, they can leave an introductory greeting, indicating their name and interests. The system gives users three options: live chatting with other users, leaving voicemail messages for other users, and accessing voicemail messages left for them by other users. The voicemail messages are directed to one other specific member at a time. These individuals are generally strangers to each other. The messages can be listened to multiple times by different individuals, but are deleted if a member’s account is dormant for three months.

In convicting the accused of breaching the prohibition order, the trial juge stated: “Interactive Male was not a digital network; however, it was clearly a form of a chat room accessed by using a telephone where users discussed or promoted sexualized depictions of children or child pornography”.

The accused appealed form conviction, arguing that the Crown had failed to prove that he had accessed a digital network.

HELD:  The appeal was allowed and an acquittal entered. The Saskatchewan Court of Appeal concluded that the Crown had failed to prove that the accused breached the term of the prohibition order in issue (at paragraph 35):

In her oral decision on conviction, the trial judge noted the police officer’s evidence that indicated Interactive Male was not a digital network; nonetheless, she determined that the breach did not turn on whether it was such a network. She found that the fact that Interactive Male was a chat room, which Mr. Fisher accessed using a telephone in order to access child pornography, was sufficient to support a breach of the order of prohibition. This interpretation would be correct, if the order of prohibition required him to abstain from using a telephone to access child pornography or related chat rooms. But that is not how the order reads. It unambiguously forbade Mr. Fisher from using a telecommunications device to access the internet or a digital network in order to access child pornography or such chat rooms. While it seems unlikely that a modern system with the features contained in Interactive Male is not based on digital technology, the uncontroverted evidence at trial was that it was not. The trial judge appears to have accepted that it was not a digital network. Based on the evidence that was accepted, Mr. Fisher did not breach this specific term, because he did not access the internet or a digital network. As such, the conviction on count 4 of the indictment must be set aside and an acquittal entered.