This case involves 176 films which the prosecution alleged were child pornography and which were sold, distributed imported and exported worldwide through Azov films incorporated by Mr. Brian Way. Way claimed these videos and photographs were nudist films of young boys at play and are not child pornography. He argued there were no sexual acts depicted in these films. The main question to be answered was whether such material constituted child pornography for the purposes of the Canadian Criminal Code (Section 163.1 (1) (ii) of which provides child pornography material qualifies as such where the dominant characteristic of the material is the depiction of sexual organs and/or anal regions of children under 18, for a sexual purpose).
All of the assets in Way's residence and those of Azov films was seized. The value of the assets seized (estimate $6,000) was deducted from the forfeiture order of $26,000. The order was changed to a fine of $20,000.
The police investigated over 800 films and photo images found at Way’s workplace (i.e. not his personal collection, which was the subject of separate proceedings). The films included commercially available films, “coming of age” films, adult pornography films, and approximately 300 films that Way characterized as nudist films. The prosecution claimed that 176 of the 300 nudist films were child pornography. The court examined if:
i. All, some or none of the 176 “nudist” films were child pornography within the meaning of the Criminal Code. In other words, is the dominant characteristic of the material the depiction of sexual organs and/or anal regions of children under 18, for a sexual purpose?
ii. If some or all of the 176 films and images are child pornography, should some or all of the charges be stayed on the grounds that police reviewed many of Way’s films in 2006, he was told they were lawful, and the films were returned to him knowing he might continue to sell them?
iii. Did Mr. Way knowingly direct his film editor and one of his cameramen to import, produce, distribute and export child pornography for the benefit of a criminal organization operating under the names, 4P5P Inc and Azov films?
Regarding the first issue -the court noted the child pornography is defined in section 163.1 (1) (b) of the Criminal Code, as a film, video or picture that has as its dominant characteristic, the depiction of a sexual organ or anal region of a person under eighteen for a sexual purpose. The court noted the prosecution is required to prove beyond a reasonable doubt that depiction of their sexual organs or anal regions, secondly, that the depiction is for a sexual purpose, and thirdly that the image or images were in Way’s possession.
In the present case most of the boys were aged between 10 and 18 years but were not engaged in sexual acts, nor was there fondling or sexual touching. Accordingly the court observed the determination (as a film, video or picture that has as its dominant characteristic, the depiction of a sexual organ or anal region of a person under eighteen for a sexual purpose) can be difficult in such circumstances. It also noted there was little guidance in the area as to possible criteria. The court in the present case suggested non-exhaustive factors that could be used to decide if the dominant characteristic of an image is the depiction of sexual organs or anal regions, or that the depiction is for a sexual purpose. In determining whether the dominant characteristic is the depiction of the genital or anal area, the court considered the following three factors:
a. the clarity of the image;
b. the proximity of the genital area or anal region to the camera;
c. the duration of the depiction of the genital and anal region;
d. the camera angle
e. whether the camera zooms in on the genital or anal region
f. whether the focus on the genital area or anal region seems to be a deliberate
intention to emphasize the genitals or anal region; and
g. whether there are captions or other methods used to highlight the genital and anal
iii. third, the context in which the images are taken. This includes:
a) the significance of the images to the film as a whole including the plot, visual
representations or music;
b) the apparent purpose of the depiction of the genitals and /or anal region; and
c) if they are part of a larger collection, the context of the collection as a whole.
Recalling the R. v. Sharpe (2001 SCC 2,  1 SCR 45) and R. v. Chaisson (unreported)) the court noted it was an objective test based on the image not on what was in the mind of the person in possession or the maker of the image.
The court set out the formula of most 176 films videos as the following: that almost of the people that appear in the films are boys between 10 to 18 years of age. They are clothed and then naked. They are engaged in a variety of activities that include swimming, wrestling, showering, exercising, fixing a moped, and general play. Before the films begin, there is text that scrolls down the screen explaining nudism and asserting that the film in question is a nudist film. This is accompanied by soft music and background scenery. Thereafter, the boys arrive on camera. They are clothed. Sometimes they perform an activity or go on an outing. They then disrobe and do an activity or activities while all of them are nude. Sometimes the activities involve outdoor activities like swimming, running through the woods, chopping wood or exploring on the beach. At other times the activities are indoors in saunas, showers, swimming pools or blow up pools or in a small sparsely furnished apartment used for many activities such as getting dressed in costumes, eating, play fighting and sitting on a couch. A significant portion of each film includes the boys naked. Toward the end of the movies the boys put their clothes back on. Sometimes there is an interview with the boys at the end of the movie. In some cases, members have access to accompanying pictures. In almost all of the films, there are no adults or girls present. There are no sexual acts. Occasionally the boys look into the camera as though for direction. There is no obvious storyline, the camera work in most cases is poor and there is little dialogue. The dialogue is not in English.
On the evidence the court noted that generally the earlier films (before December 2006 and the time of a police investigation) are shorter, contain less nudity and have fewer close-up images of the nude boys. The activities are usually not sexualized. But from 2007 the films changed and the court found the following characteristics made those films child pornography given:
i. there are lengthy nude scenes;
ii. the nude images are clear;
iii. there are several instances where the nude child’s genitals and or buttocks are very close to the camera;
iv. on occasion the camera zooms in on the genitals or anal region and emphasizes them;
v. the camera is sometimes placed underneath the level of the boys’ waist so as to best capture the genitals;
vi. there is no reason in the story line for nudity nor is there any artistic or educational purpose to the film;
vii. some of the films are accompanied by close up nude photographs of the boys. The accompanying photographs are often images taken at close range in poses that emphasize their genitals. They provide a sexual context to the nude films; and
viii. in some of the films, objects such as whipped cream, toothpaste or tin foil are used to focus on the genitals and render the images more sexual.
The court provided sample instances regarding when the boys were engaged in behaviour that was sexualized and provocative included where a boy slowly and seductively savours food while moaning, sucking his fingers and licking his lips. This is followed immediately thereafter with him placing whipped cream on a basketball and placing his bare buttocks on the ball. There are close up images of the genitals and buttocks and the camera is very close to the boy’s body positioned below his waist to catch clear images of his genitals. The nude scene lasts 48 minutes. The court noted this was the dominant theme of that film. In another cited example boys play Twister naked their genitals in plain view at close range. Again the court noted the focus of many of the images is the genitals; in a third sample video the court recalls that the boys put toothpaste on one another’s nude bodies, and later are lined up on the ground with their backs arched and penis’ in the air; in another example two young boys are naked in an apartment and playing in a blow up pool on the floor. They put on white underwear that becomes see through when wet. They proceed to wrestle and to attempt to rip off the other boy’s underwear. The camera zooms in on their genital areas. They then put baby oil, ketchup and whipped cream on one another; in another example nude boys wrap tin foil around their genitals and engage in activities with nothing on except for the tin foil around their genitals; and in a final example provided by the court it notes in 2010 Mr. Way sold photographs of a young naked boy (whose name is provided or who is provided with a name) sitting on a chair with his legs up. There is a clear focus on the boy’s genitals.
Regarding the declaration in the films that they are about nudism or artistic or are educational the court noted the films are “not sophisticated, are not particularly well made, and show mostly mundane, pointless activity.” Accordingly the court found the dominant characteristic in the films is the depiction of the genitals and buttocks of the boys for the purposes of the definition of Section 163. Given the court was satisfied beyond a reasonable doubt that the dominant characteristic of the image or images is the depiction of the genitals or anal region, it then considered if the material would be likely to stimulate a sexual interest in the viewer (citing R. v. J.E.I., 2005 BCCA 584,  B.C.J. No. 2592 (C.A.)). The court clarified it considered the following factors:
i. whether and to what extent the children are nude;
ii. whether there is sexual contact or the poses are sexual;
iii. whether there are indicia of sexual stimulation of the person depicted or sexual
interest by that person in another person;
iv. whether the activities engaged in are associated with sexual activities
v. whether the images include the use of items commonly used for sexual
vi. whether there are captions or extraneous indicia of sexuality;
vii. whether the images appear to have been obtained surreptitiously or under
viii. whether the images are part of a collection of sexual material; and
ix. the content of the collection as a whole.
The court clarified that the determination of whether images would be reasonably perceived as intended to cause sexual stimulation to some viewers is also based on the image not on what was in the mind of the person in possession or the maker of the image (citing R. v. v. Sharpe 2001 SCC 2,  1 SCR 45 and R. v. Chaisson at p. 31 (unreported)). It again noted there was little to no artistic merit or educational purpose.
In terms of the issue of sexual stimulation the court confirms it found the enterprise was acute to and responded to the requirements of the viewers in terms of increased nudity-while also displaying an awareness that some of their activity might be considered illegal (i.e. as child pornography). It knew where the customer would place value (i.e. on nudity of the boys). In communications between Mr Way and those within the enterprise they discussed for example videos with see through wet underwear as selling particularly well-because the underwear was see through. The court noted as the client base expanded so did the amount of nudity -and they responded to the demand for increased nudity as the area where the customer placed value. By 2011, revenues reached approximately $1.6 million. Azov films had a sizeable group of viewers in 92 different countries. The increasingly large revenues the court reasoned was as a response of the many customers for more nudity-including a focus below the waist material. The court concluded beyond a reasonable doubt that given
i. the sexual poses,
ii. the type of activities engaged in,
iii. the website on which the films are sold (the common element of which is the sale of films that depict young nude boys and men),
iv. the fact that graphic photographs accompany some of the films, and
v. the communications by Way regarding the desires of his ever increasing client base, the reasonable viewer would consider that the depictions were for a sexual purpose.
In sum the court was satisfied both that the dominant characteristic of the films was the depiction of the genitals and anal regions of the boys and for a sexual purpose that those films are therefore child pornography.
Regarding the final question (possession) the court the prosecution must establish that the image or images were in the possession of the accused i.e. his knowledge and control. But it is not necessary that he know they are child pornography. The prosecution must prove that the accused intended to make computer files containing child pornography available to others or have actual knowledge that the file sharing program makes files. The court agreed Mr. Way had knowledge of the existence of the films and photographs and the control necessary to find him in possession of the child pornography. It noted the films were marketed on his website. He advertised the films on his website and they were sold in many countries. The court found that Mr. Way made, was in possession of, advertised on his website to distribute, sold and distributed, imported and exported child pornography and that he was paid from money earned as a result of selling films including those at issue.
-The case was potentially complicated by claims of an ‘officially induced error’ from the time of a police investigation in 2006. The court confirmed in theory that this argument had merit in terms of a bar to conviction rather than as a full defence. While ordinarily ignorance of the law is not an excused as a police officer had indicated to Way in 2006 that 15 films were not child pornography (even though five of those films in the view of the court were) the court agreed none of those five films can be used against Way. Way’s reasonable reliance did not negate his culpability but the State agent did something which disentitles the State to a conviction. However other later films not reviewed by police in December 2006 (And not the subject of the wrong advice therefore) did not have available to them the defence of officially induced error. In any event an accused cannot assume his actions are reasonable-Mr. Way knew there was a risk that some of the films he was producing after December 2006 were not legal as revealed by his correspondence with others. The court also concluded that the later films were worse than the films that were seized in 2006 and were child pornography.
A final question before the court was whether Mr. Way a Member of a criminal organization? The court considered the definition in Section 467.1(1) of the Criminal Code, which defines “criminal organization” as a group, however organized, that
i. is composed of three or more persons in or outside Canada; and
ii. has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
The factors to be considered to determine whether a group is a criminal organization include a determination as to whether there are:
i. rules amongst those in the organization,
ii. defined roles within a structure,
iii. communication among the participants,
iv. actual or pending material benefit to the parties, and
v. an organizational structure that promotes the commission of offences. (R. v. Giles, 2008 BCSC 367 and R. v. Lindsay, 2005 24240 (ON SC)).
There must be a hierarchy of at least three permanent positions, meaning they are not dependent on a particular person holding them at any given time. (R. v. Lindsay, 2005 24240 (ON SC),  OJ No. 2870 (S.C.J.)).
In Lindsay, the court held that while certain characteristics such as:
i. the primary motive to make money for themselves;
ii. group hierarchy with at least three permanent positions and rules;
iii. limited or exclusive memberships;
iv. an organization that perpetuates itself;
v. use of illegal means; and
vi. domination of a territory or industry; are important, “it is preferable to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members”.
On the evidence however the court noted that the prosecution produced no evidence as to the roles of the that the editor (Mr. Donnelly,) the cameraman (Mr. Roth) or Mr. Way’s mother (Sandra Waslov) the purpose of the test. What was known was that Mr. Donnelly had a contract and received a salary to edit the footage. He was not the directing mind of the business nor did he gain financially from the sale of these films, other than payment of his salary. Mr. Roth provided footage that was edited and then included in some of the films sold by Mr. Way. He received a fee for the footage. He received some direction from Mr. Way as to the type of footage Mr. Way wanted and according to one email he received a higher fee if there was more nudity. There is no suggestion that he shared in the profits. He had no permanent position or decision-making role within the organization. Mr. Way’s mother Sandra Waslov signed the pay cheques and dealt with civil legal issues that arose. She is listed as Treasurer of Azov Films. She received a salary of $60,000 per annum. In addition no evidence was produced regarding:
i. the rules of the organization,
ii. the interrelationship among the parties to the alleged criminal organization,
iii. the knowledge of Donnelly, Roth or Waslov about what other members of the organization were doing for the criminal organization,
iv. any dealings at all among Mr. Donnelly, Mr. Roth or Ms. Waslov, or
v. an organization that took on a life beyond the immediate roles of the persons employed by the company.
The court found the prosecution did not prove that Mr. Way instructed others to import, produce, distribute and export child pornography for the benefit of a criminal organization.
The court found Brian Way guilty of
(a) making and possessing pornography for the purpose of publication
(b) possessing for the purpose of publishing, and advertising for the purpose of distributing pornography,
(c) selling and distributing pornography,
(d) possessing for the purpose of exporting, importing and exporting child pornography and
(e) possessing money made from selling child pornography (proceeds of crime).
He was found not guilty of instructing others to import, produce, distribute and export child pornography for the benefit of a criminal organization. On 8th August 2016 he was sentenced to ten years imprisonment and a fine of $20,000.
This case (R. v Way, 2016 ONSC 5052) gave reasons for the sentences imposed on Way. The judge sentenced Way on 15 counts linked to both the manufacture and sale of child pornography and his personal collection of child pornography (regarding which early in the proceeding, he had pleaded guilty). He received ten years imprisonment and a fine of $20,000. The judgement involves three sets of charges: those that pertain to Way’s home collection of child pornography, those that pertain to child pornography films he sold through his business, and possession of proceeds of crime from the business. Way received a 10 year sentence for selling the child pornography films which included a three year sentence for possession of the proceeds of crimes.
It was noted he pleaded guilty at an early stage of the proceeding to possession of child pornography at his home and making some of those pornographic images on his home computer available to others. There was a maximum penalty of five years for possession of child pornography. There was a maximum penalty of ten years and a mandatory minimum sentence of one year for making child pornography available.
Way’s home collection includes approximately 250,000 images of which 187,001 are unique images, and approximately 10,000 videos, of which 8,747 are unique images. Many of the images in the home collection were graphic, disturbing and sometimes violent depictions of children ranging in age from toddlers to adolescents. They are involved in sex acts. Way did not dispute that he was in possession of this material found on his home computer. He received a five year sentence regarding his home collection of child pornography. Regarding the business collection (i.e. Azov films) the court considered six years was appropriate given that portrayal of the boys in the films and accompanying photographs was at the low end of the spectrum for child pornography as there were no sexual acts performed. This sentence was stated to be consecutive to the five year sentence for possessing and making child pornography available. It was decided Way’s sentence would reflect the time already served in custody (equivalent of 7 years and 10 months in custody by August 2016) before sentencing. The ten year incarceration was reduced by 6 months to reflect the abusive behaviour of those in authority (prison guards mainly).
The court did not agree that the amount of the forfeiture order sought by the prosecution, $800,000, reflected the benefit or advantage Way received from his crime in accordance. Nor did it represent the amount he took under his actual control. It was reduced to of $20,000.
Way incorporated Azov films which sold over 800 film titles of which 57 were illegal films. The court reasoned the only benefit of any kind Way received from Azov films was his salary of approximately $65,000 per year for the years 2007 through May 1, 2011. Way’s cumulative gross salary for the four year and four month period was $287,666. Fifty-seven of the 800 films (i.e. 1/16th) of the total film titles sold by Azov films were child pornography. One sixteenth of Way’s total salary over the entire period of his time with Azov films is $17,979.13.
The court noted the prosecution had the financial records for Azov films and has the onus to establish on a balance of probabilities, the amount to be forfeited, it adduced no evidence to show that the 57 films at issue generated more sales than the other films sold by Azov films.
However, Way testified and his email exchanges show that he included more close up nude footage that the court determined was child pornography, because he noted they sold well. Moreover, based on the evidence at trial, Way seemed to spend more time and effort developing, selling and distributing the 57 child pornography films than on the legal films he sold through Azov films. The court found therefore that there was some evidence to justify an increase of the apportionment of his salary to the illegal films. While the court stated it was impossible to accurately quantify this amount it estimated that the amount of $17,979.13 should be increased by 50% to reflect proceeds received from his criminal activity. The amount of the forfeiture is therefore increased to $26,000 as the proceeds of crime. But as all assets of Azov films and Way have been seized but the value of those assets had not been quantified. As such, the amount of the forfeiture was reduced by $6,000. The court concluded as Way has nothing to forfeit, a fine in the amount of $20,000 was imposed payable within three years of his release failing which an additional sentence of six months will be imposed as provided for in the legislation. In addition Way was required to register himself as a sex offender; provide a sample of his DNA for forensic analysis; and was forbidden from going into a public park or public swim area where children under 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; seeking, obtaining or continuing any employment, or becoming a volunteer in a capacity, that involves being in a position of trust or authority over children under the age of 16. In addition he was forbidden from using a computer to communicate with a person under 16. This provision was stated to remain in force for 10 years after Way’s release. Way was forbidden from owning a firearm for life; and upon his release the court stated it required Way is to be placed on probation for 3 years.
Forty-four boys aged mostly between 10 and 18 years of age.
Ontario Superior Court of Justice