Monday, 18 June 2018

THE CRIME OF MAKING CHILD PORNOGRAPHY                                                        
It is a crime everywhere to make child pornography because in doing so, the children in the pictures are victims for two reasons. They are subjected to doing things they don’t want to do and should not be doing and their pictures will be seen my many persons and possibly by their friends also—for ever. Both of these kinds of incidents would be traumatic for these victims.

I should point out however that merely depicting naked children in pictures is not considered child pornography. There was a published nudist magazine that had many pictures of nude children in the magazine and the magazine was not prosecuted for depicting these children on the pages of the magazine since they weren’t participating in any form of sexual activities.

Child pornography includes any image, however created, or any description of a person, real or simulated, who is depicted, made to appear, look like, represented or described as being under the age of 18 years—(i) engaged in sexual conduct; (ii) participating in, or assisting another person to participate in, sexual conduct; or (iii) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.

Hence, a picture of a small child lying on her back with her legs spread apart to the extent that her vagina is shown, would be suggestive of her waiting to have sex with a man. The picture would be highly exploitive and for this reason, it would be deemed as child pornography.  On the other hand, if she was merely lying on her back with her legs together, it would not be considered as pornographic.

It is a crime if anyone(a) unlawfully possesses;(b) creates, produces or in any way contributes to, or assists in the creation or production of;(c) imports or in any way takes steps to procure, obtain or access or in any way knowingly assists in, or facilitates the importation, procurement, obtaining or accessing of; or(d) knowingly makes available, exports, broadcasts or in any way distributes or causes to be made available, exported, broadcast or distributed or assists in making available, exporting, broadcasting or distributing, any film, game or publication which contains depictions, descriptions or scenes of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children, shall be guilty of an offence.

Showing or describing parts of the body of a child in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation is illegal.  

Child sexual exploitation is a form of sexual abuse that involves the manipulation and/or coercion of young people under the age of 18 into sexual activity in exchange for things such as favors, money, gifts, accommodation, affection and/or status.

The manipulation or ‘grooming’ process involves befriending children, gaining their trust, and often feeding them drugs and alcohol or doing other favors for them sometimes over a long period of time, before the abuse begins. The abusive relationship between victim and perpetrator involves an imbalance of power which limits the victim’s options. It is a form of abuse which is often misunderstood by victims and outsiders as consensual. Although it is true that the victim can be tricked into believing they are in a loving relationship, no child under the age of 18 can ever consent to being abused or exploited.

“The term “sexual exploitation” means any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to profiting monetarily, socially or politically from the sexual exploitation of another person as stated by the United Nations Secretary-General’s Bulletin on protection from sexual exploitation and abuse.

The question facing parents is whether or not a parent publishing naked photos of his or her children amounts to sexual exploitation or in such a manner that it is capable of being used for the purposes of sexual exploitation?

This question is distinct from a different question, namely whether parents should be publishing naked photos of their children, even if it isn’t child pornography? This second question has more to do with your children’s right to privacy and how you are effectively making decisions for them about how little privacy they will have in a connected world where the Internet doesn’t forget.

Whether a picture of a naked child amounts to child pornography isn’t always clear and there is certainly room for interpretation based on the context but classifying “any image of a naked child” as pornography seems to be interpreting the law too broadly, especially if the possible consequences for parents sharing these sorts of photos with friends and family with innocent intentions can be so severe that they are imprisoned or alternatively, they lose custody of their children.

What parents should seriously consider is whether they should share seemingly innocent photos of their naked or partially naked children online. The Internet doesn’t forget what is put into it and when you publish photos of your children publicly, you make decisions about their present and future privacy for them without them being able to make a meaningful decision themselves.

In Canada, the penalty of making and/or publishing child pornography is ten years in prison. Further, the record of these convictions will never be removed from government records. If the person who makes child pornography is participating in the sex acts with the victims, that person will be subjected to a much higher penalty.

Persons who downloaded child pornography for their own sexual arousal are suffering from a sexual sickness and should be treated for this sickness. However, those who make it and publish it to make money are really evil criminals because they use innocent children for this evil deed and unfortunately, these unfortunate victims will suffer the horror of knowing that their faces will forever end up in the  public domain.

Friday, 15 June 2018



When the police in 1995 discovered that a Vancouver, British Columbia man (John Sharpe) was in possession of child pornography, they arrested him. Sharpe was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code of Canada amongst other charges also. 

The criminal law fundamentally deals with right and wrong and gives expression to our society's moral principles. Section 163.1(4)  (enacted in 1993) seeks to prevent the harm to individuals (especially children) and to the community which, according to many, is caused by the possession of child pornography.

 Sharpe argued that section 163.1(4) violated his rights under section 2(b) of the Canadian Charter of Rights and Freedoms.

2. Everyone has the following fundamental freedoms:
 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

The  Crown conceded that this section of the law did violate Sharpe's right to freedom of expression as stated under section 2(b) but argued that this section of the Criminal Code was saved by section 1 of the Charter.

 Section 1 of the Charter is the 'Notwithstanding Clause' of the Charter of Rights in Canada.  It says;

  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law can be demonstrably justified in a free and democratic society.

 What this means is that if a law in Canada is draconian, almost dictatorial and it infringes on the rights of the citizens of Canada, the law can still remain on the books if it is in the best interests of the citizens of Canada.

An example of this can be found in the driving and drinking laws. Normally, it is an infringement of our rights to be stopped by the police on a highway and pulled over to determine as to whether or not our driving is impaired by our ingestion of alcohol.

The courts have ruled however that it is against the public good to not do something like that to stop the carnage on the highways brought about by drunk drivers so the police have the authority to pull us over, even randomly (which in effect infringes our rights to security of the person) if it will mean stopping the drunks from driving on our highways.

The matter went to trial and Sharpe was acquitted. The Attorney General of British Columbia ordered an appeal and the matter went to the British Columbia Court of Appeal which is the highest court in B.C. 

On June 30, 1999, that court concurred with the trial judge's ruling that it was not a crime to have in one's possession, child pornography.

This is not to say that either courts concluded that there was nothing wrong with child pornography. From the beginning, the courts did consider the moral issues.

In Sharpe's original trial, one of the witnesses for the Crown, Dr. Collins, offered several reasons why, in his view, child pornography is harmful to children.

The doctor said that some pedophiles select sexually explicit depictions of children having sex with children, or with adults, in order to lower their  inhibitions and to make the depicted conduct of the pedophile looking at those images appear to be normal.  The second harm is that pornography excites some child molesters to commit offences. The third harm is that child pornography augments reinforces the "cognitive distortions" of pedophiles. 

Dr. Collins explained that cognitive distortions are erroneous beliefs by which pedophiles justify their aberrant behavior.  Examples of cognitive distortions by the pedophiles are that child-adult sex is natural and that it does no harm to children. The fourth reason offered by Dr. Collins is that children are abused in the making of pornography and thatpornographic films or photographs are proof of their abuse.

Judge Shaw in the original Sharpe trial looked at other cases as a guide In dealing with section 1 of the Charter, another judge addressed the proportionality tests set out in R. v. Oakes (1986),  a Supreme Court of Canada appeal  and that court said in part;

“This objection ignores the reality that, on the basis of the opinion evidence which this court has  with respect t to accepted, private possession of child pornography poses a realistic risk of harm to children, by reinforcing cognitive distortions, fueling fantasies, and its potential use in "grooming" possible child victims.” unquote

It is entirely reasonable and within the legitimate objectives of Parliament to legitimately criminalize private possession of child pornography.

The final proportionality test addressed by the judge in Oaks case was the weighing of the legislative objectives of section 163.1 against the effects of the prohibitions. He said;


“The final branch of the proportionality test includes a weighing of the legislative objectives against the effects of the legislation. Even if legislation otherwise meets section 1 (of the Charter) criteria, a provision will not constitute a reasonable limitation if its effects are so deleterious that they outweigh the importance of its objectives.”  unquote

 The child pornography provisions, designed to protect children, do indeed limit the fundamental freedom of expression. However, in the contextual approach that is required, one must keep in mind the type of expression that has been limited. As Justice Dickson of the Supreme Court of Canada observed in the Keegstra case  heard in 1988(in which a school teacher denied the existence of the Holocaust of the 2nd World War and as such, was promoting hatred towards Jews.) said.  “It is equally destructive of freedom of expression values, as well as the other values which underlie a free and democratic society to treat all expression as equally crucial to those principles.”

The trial judge in the Sharpe trial said that there was no evidence that a person who was prone to act on his fantasies would likely do so irrespective of the availability of pornography. As well, he added that there was no evidence that the production of child pornography would be significantly reduced if simple possession was a crime.  He went on to say that the prohibition extended to those who collected it with no harmful intent and pedophiles who used pornography for relief from their affliction by masturbation were the persons whose rights were directly affected by the enforcement of section 163.1(4) of the Criminal Code.

It is obvious from both rulings in the Sharpe trial and appeal that the courts were more concerned however with the constitutional issue of the freedom of speech—in other words, not to infringe upon the rights of every citizen to have in one's possession, any  written or pictorial material, no matter how offensive.                                                                                                                                                                                                                                              
At Sharpes’ trial, the judge ruled that Section 163.1(4) was void and no longer enforceable. By that, he was saying that that subsection of the law is no longer the law of the land. According to the judge, the detrimental intrusion into the rights of freedoms of expression and to privacy by making it an offence to simply possess child pornography, substantially outweighed its salutary effect of combating practices that put children at risk.

I should point out however that there is a limitation as to who can not be portrayed in a picture that is child pornographic. The Supreme Court of Canada in 2015 ruled that the private use exception can never be available as a defence to child pornography involving children under the age of 12.  For young persons aged 12 or 13, the circumstances where the exception night have be available were defined narrowly by the Criminal Code.  Otherwise, at the time of the alleged offences in such a  case, the private use exception was only available where the young person involved in the sexual activity was between 14 and 17 years of age, inclusively.  Today, this is restricted to those aged 16 or 17 years of age.

A ban on distribution was far less invasive of the rights to expression and privacy than a total ban on possession. In his opinion, the definition did not violate the section 2(a) Right to Freedom clause of conscience as this guarantee did not extend to manifestations of conscience that injured others as proposed by Mr. Sharpe.  Further, it did not violate the section 2(d) right to freedom of association as groups were not thereby given the right to do that which would be unlawful if done by an individual.  Finally, he said that the anti-discriminatory purposes of section 15 of the Charter did not extend to the Sharpe case.

In the Sharpe’s case, it was the judge's view however, that it was appropriate to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of possession of child pornography.

 To do that, he first had to enter into the weighing process. First, the salutary effects. He said in part;

The prohibition combats practices and phenomena which, at least arguably, put children at risk.  These include: the use by some pedophiles of sexually explicit images in the grooming process leading to sexual relations with children; the abuse of children in the making of pornography and the preservation of that abuse in  photographs or films; the confirmation or augmentation of cognitive distortions of some pedophiles; the incitement of some pedophiles to commit offences against children; an the advocacy or counseling of the commission of sexual offences against children.

The judge said that there are factors which go to the weight to be attached to the effectiveness of the prohibitions in combating the foregoing practices and phenomena.

He then went on to say that there is no evidence which demonstrates any significant increase of danger to children related to the use of pornography by citizens for private use. He further said that there is also no evidence that "mildly erotic" images are used in the grooming of children into a life of pornography.

It appears thus far that only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Obviously sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. 

A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is a made a crime because child pornography is distributed all over the world by mail, by personal delivery and through the Internet.

 Everyone in Canada has the following fundamental freedoms:
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

 Our freedom of expression plays an important role in this case.  The personal belongings of an individual are an expression of that person's essential self.  His or her books, diaries, pictures, clothes and other personal things are intertwined with that person's beliefs, opinions, thoughts and conscience.

 In the initial Sharpe trial, the court included that 'individual self-fulfillment and personal autonomy' exists within the freedom of expression. The judge added;

“The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in  social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and  freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.” unquote  

What weight will be given to these values will depend upon the particular circumstances.  As Dickson of the Supreme Court of Canada  said in Keegstra at p.29:

 “Undoubtedly these values and principles are numerous,covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.” unquote  

One significant value underlying the Charter is the individual's reasonable expectation of privacy.  It is well described in R. v. Dyment in 1988) in the Supreme Court of Canada  by Justice La Forest who  said in part; ;

“The foregoing approach is altogether fitting for a constitutional document enshrined at the time when society has come to realize
that privacy is at the heart of liberty in a modern state: Grounded
in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. An important aspect of privacy is an individual's right of privacy in his or her own home.  In the Sharpe case, the police entered Mr. Sharpe's home pursuant to a search warrant and seized his collection of materials alleged to be pornographic.” unquote  

The case law on 'freedom of expression' reflects the Charter's concern for the right of privacy. The Keegstra decision deals with the constitutionality of the Criminal Code ban on the willful promotion of hatred against identifiable groups. The prohibition expressly excluded "private conversations" and this exclusion was an  important factor in the court (by a 4-3 majority) upholding reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

Mr.  Justice Dickson of the Supreme Court of Canada in writing for the majority in the Keegstra case, said;

“In assessing the constitutionality of the law especially as it concerns arguments of overbreadth and vagueness, an immediate observation is that statements made ‘in private conversation’ are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, thereby indicating Parliament's concern not to intrude upon the privacy of the individual.” unquote

I think one could successfully argue that it is not an offence to promote the concept of hatred for peoples of another race while in a private discussion with another person; it is also not an offence to read about that same hatred in a book? And by analogy, if it isn't an offence to promote the concept of sex with children in a private conversation with another adult, it follows that it wouldn't be an offence to read or look at pictures depicting the same thing. I am speaking from the legal point of view, not the moral position of the large majority of the population of Canada including that of my own. 

 First and foremost, the invasion of freedom of expression and personal privacy when enforcing section 163.1(4) of the Criminal Code is profound.  Further, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition admittedly also includes pedophiles who; instead of preying on children, use pornography for very private purposes, such as relief from their affliction through the use of masturbation.  As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors.

The judge in the original trial of Sharpe said that whether this cathartic effect outweighs the harm caused by the possession of pornography is not known; it is nonetheless a significant factor to take into account.  The ban includes "mildly erotic" pornography,  although the evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children.  As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nonetheless subject to criminal sanctions arising from them being in mere possession such as  a magazine or a newspaper which may contain some material said to be pornographic as an example.

Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal as in the case of the R. v. Popert decision. Purchasers of such publications will have to become their own censors.


 In the Sharpe case. the judge then had to weigh the salutary effects against the detrimental effects.  It was his opinion that the detrimental effects substantially outweighed the salutary effects; that is that the intrusion into freedom of expression and the right of privacy being so profound that it is not outweighed by the limited beneficial effects of the prohibition.

As pointed out earlier, an individual's personal belongings are an expression of that person's essential self. Books, diaries, pictures, clothes and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience.  The simple ‘possession prohibition’ deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight.  It certainly appears that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects.

Justice Mary Southin of the B.C. Court of Appeal said in her ruling;

“The invasion of freedom and expression and personal privacy is profound. Further, the prohibition (section 163.1(4)) extends to all persons including those who make no harmful use of pornography.”

Justice Anne Rowes in her ruling on the law on possession as it stands today, said that it was an extreme invasion of the values of liberty, autonomy and privacy. She may have reached this conclusion because the material may have been created without actually abusing children. With the ongoing increases in computer technology, it would be very easy nowadays to show children via computer graphics, in which they are indulging in sex between themselves or with adults. This being as it is, the actual use of children in the making of child pornography will certainly be in the future, a non issue. But the issue of our freedom is never a non issue.

 B.C.'s Chief Justice, Allen McEachern doesn't agree with that premise about freedom not being a non issue. He said in his ruling about the benefits of the law protecting children that it outweighs the importance of those extremely few who may wish to possess such material for a private and innocent reason."

The problem I have with that kind of rational is that the rights and freedoms enshrined in our Charter of Rights and Freedoms is set aside because of the nefarious behavour of the 'extremely few' persons that the Chief Justice spoke about. 

These two rulings which found in favour of John Sharpe are not, nor should they be construed as the courts giving judicial approval of sexual exploitation of children for the purpose of making and distributing child pornography. There can be very few crimes in this world that is worse than using real children in the filming of child pornography.

But when outraged citizens look at the broader picture, they may realize that these rulings are not for those very few who are inclined to look at and read child pornography but for the vast majority of the citizens as they deal with their right to freedom of thought.

On the one hand, we can morally condemn those who are sexually titillated by child pornography but on the other hand, should we really condemn them or anyone else for their thoughts? Our Charter clearly states that we cannot.

The real danger facing us is that if the Supreme Court of Canada and/or Parliament decide that section 163.1(4) of the Criminal Code or a new variation of it is a valid law, where will the infringement of our rights and freedoms end?

The first to be imprisoned will be those in possession of child pornography. Following close behind will be those in possession of any form of pornography. And then the thought police will go after those that even talk about pornography in the privacy of their homes. And finally before the end of the next century, it will be against the law to even think that the sun is anywhere but in the centre of the universe.

It is my sincerest belief that it is far better to let those 'extremely few' sick people who get sexually aroused looking at their dirty pictures, do so without infringing upon their rights to do so, then to permit a law to continue to exist that will gnaw at the very foundation of our rights and freedoms and turn those foundations into sawdust. Our Charter which guarantees us our rights and freedoms can never be supported by sawdust.
However  in my opinion, it should always be a criminal act for anyone to encourage or force a child to commit a sexual act with anyone for the purpose of creating child pornography. Our Charter doesn’t protect anyone of committing  such activities under any circumstances.

In our current era and even years before that, DVDs were created showing sex acts in all forms and it was never declared a criminal offence to produce such DVDs or sell them or even possess them. However, I don’t think that DVDs will be produced and sold that shows children engaged in sex acts with other children or adults. Our society has limitations place on such acts and that is one of them.

In the next article, I will tell you about another Supreme Court of Canada decision on child pornography that was decided on 2015. The facts were different so it had a different result than this one.

Wednesday, 13 June 2018


This is a very long but interesting article and much pf this article deals with the protection of children in their homes.

I will admit from the beginning of this article that I am an atheist. Notwithstanding that, I accept many of the teachings in the Christian Bible as being very valid and for that reason; I try to live by them.

However, there are people in this world of ours who have very weird religious beliefs. This article is about the parents of a child whose religious beliefs are really strange. It was how they expressed their beliefs in a courtroom ands by email  that was truly weird.

In order to protect the name of the child, I will refer to her as “CJ” and her parents as “The Parents” or “Mother” or “Father” or by their initials.   

On November 14, 2017, the Provincial Court of British Columbia found that a child, C.J., was in need of protection and ordered that C.J. be placed in the continuing custody of the Director of Child, Family and Community Service. The parents appealed that decision.

The appellants allege a number of errors in law. These alleged errors include:

1.   the trial judge failed to find that the Director discriminated against the appellants contrary to the Canadian Charter of Rights and Freedoms[Charter];

2.   section 40 of the Act requires that s. 13 be applied and given as a reason for the protection order; the trial judge did not state the specific grounds for the protection order, as required under s. 13;

3.   the trial judge cannot make an order under s. 41 of the Act without considering s. 40(3)(b);

4.   the trial judge did not identify the reasons for the continuing custody order pursuant to s. 41(2)(a), (b) or (c);

5.   the appellants did not consent to the trial judge’s order granting continuing custody to the Director as is required pursuant to s. 50.1(2)(a), and he made an order contrary to s. 50.1(2)(c); and

6.   the appellants were treated unfairly by the trial judge.

Ultimately, the appellants (parents) wanted their child returned to them immediately.

 The appellants are the biological mother, A.J., and biological father, D.K., of C.J., who was born November 1, 2016.

The appellants are Christians and their view of Christianity informs all aspects of their lives. Both parents come from religious families.

The father, D.K., grew up in Maple Ridge and was home-schooled. He was later involved in missionary work in Mexico with his family. In his early 20s he had a falling out with his parents and returned to British Columbia. He spent several years in and out of work, abusing alcohol and drugs, and living on the streets. At some point he returned to his Christian values and became involved with A.J his wife.

The mother, A.J., was born in Ontario. She went to private Christian schools in Toronto and in Ottawa. She also distanced herself from religion in her young adult years. However, in 2012 A.J. returned to her Christian roots and attended the Pacific Life Bible College in Surrey, BC.

A.J. and D.K. met in April 2014. Their initial attraction appears to have largely been their mutual interest in the teachings of Christ. Sometime in 2015, the couple was privately married. This marriage is not sanctioned by the province but they believe it is sealed by the Holy Spirit under God’s law. Legally, their relationship is referred to as a common-law relationship.

The couple have had unstable working and living arrangements, and have a history of alienating friends and church members. On a number of occasions they have been told they are not welcome in various churches. This typically occurs after they attempt to purge churches of evil influences. It appears that due to their strong religious beliefs, they are intolerant of those who do not espouse identical views. This includes other Christians.

The couple have lived in a number of different areas including Surrey, Pemberton, Kelowna and Peachland. In early 2016, A.J. moved to Peachland without D.K. due to conflict with the individuals with whom they were living in Pemberton. There was also conflict between A.J. and D.K.

In March or April 2016, A.J. discovered that she was pregnant. On April 21, 2016, she started attending a West Kelowna maternity clinic (the “Maternity Clinic”) which supports homebirths. In October 2016, D.K. moved to Peachland to live with A.J.

The couple has a history of arguing, and on at least one occasion their argument became violent. Although A.J. initially reported these violent incidents, she later denied them.

The initial report was as follows. While attending the Bridges Lunch Program, A.J. disclosed to the facilitator of the lunch program that her husband choked her by grabbing her throat to stop her from crying. A.J. disclosed that her husband had done this more than once and that he had tied her hands and covered her mouth with tape, which scared her. She disclosed that D.K. regularly beat her. A.J. also stated that her husband grew up in a cult, that he believes sexual relations between children should be encouraged, and that she believes the abuse she was experiencing is “spiritual warfare”. The appellants role-play these sins where she plays the victim and he plays the perpetrator.

 A.J. was later interviewed by the police and she denied any such assaults. However, on November 2, 2016, after the child’s birth, A.J. was interviewed by a social worker about the alleged violence. She advised that D.K. had put his hands around her neck and brought her down to the floor. On the same day, a social worker interviewed D.K. about the allegation. D.K. said the incident occurred on his birthday, that they were arguing and he felt he was not being heard by A.J. He became frustrated with her and had a few drinks to calm himself. Later, to quieten her down, he put his hand around her throat and his other hand over her mouth but he did not hurt her.

A.J. also stated that her husband grew up in a cult, that he believes sexual relations between children should be encouraged, and that she believes the abuse she was experiencing is “spiritual warfare”. The appellants role-play these sins where she plays the victim and he plays the perpetrator.

A.J. was later interviewed by the police and she denied any such assaults. However, on November 2, 2016, after the child’s birth, A.J. was interviewed by a social worker about the alleged violence. She advised that D.K. had put his hands around her neck and brought her down to the floor. On the same day, a social worker interviewed D.K. about the allegation. D.K. said the incident occurred on his birthday, that they were arguing and he felt he was not being heard by A.J. He became frustrated with her and had a few drinks to calm himself. Later, to quieten her down, he put his hand around her throat and his other hand over her mouth but he did not hurt her.

As a result of the reported violence, on October 27, 2016 a complaint was made to the Ministry of Children and Family Development (the “Ministry”).

In addition to the domestic violence concerns, the Director heard concerns regarding the care of the child. The first issue was with respect to A.J.’s insistence that the birth be a homebirth. At the outset this was not problematic. However, due to difficulties A.J. was having with the staff at the Maternity Clinic, it was determined that it would be best to have the baby delivered in the hospital. There was a lot of back-and-forth between the parents, the social workers, and the Ministry because the parents did not accept the decision that the baby be delivered in the hospital. Dr. Hautala from the Maternity Clinic called the Ministry because she now had concerns about A.J.’s mental health.

Ultimately, the appellants chose to continue with a homebirth without any medical attention. This arrangement was unacceptable to the Ministry. The Maternity Clinic also did not recommend a medically unsupported home delivery.

On the day of the actual birth, A.J.’s parents were present. After unsuccessfully encouraging the appellants to get medical attention, A.J.’s parents went to a neighbour’s home and asked the neighbour to call 911 for emergency assistance. The paramedics arrived shortly thereafter. The father D.K. did the delivery, following the instructions of a paramedic.

After the delivery, the baby was transferred to the hospital. The trial judge was concerned that a number of medical procedures were offered to the parents to assess the health of both the baby and the mother, and all of these procedures were refused by A.J.

At the same time that the baby was taken to the hospital, the Ministry unsuccessfully took steps to have A.J.’s mental health assessed. Dr. Hautala was concerned with A.J.’s mental health and her ability to provide safe care to the infant, and felt that “the inflexible beliefs of the mother would make her unable to make good decisions for the baby” (paragaph. 45).

The trial judge noted at paragraph 60 that A.J. refused all of the following medical procedures: the usual Rhogan blood product used to avoid A.J.’s body making antibodies against future pregnancies, which was recommended because A.J. had RH positive blood; routine pre-natal vitamins; routine cervical pap screening; routine blood-sugar testing; GBS screening; a vaginal exam prior to birth; a vitamin K shot for the baby after birth; eye drops for the baby after birth; a bilirubin blood test for the baby; a common hearing test; and RH testing for the baby. A.J. also expressed unwillingness to allow the child to receive vaccinations.

Due to concerns regarding family violence and mental health, a family intervention specialist was assigned to work with the family. This specialist worker had a Master’s degree in social work with a background of working with people with potential mental health difficulties. Additionally, because the family was being investigated for potential domestic violence, the parents reluctantly signed a voluntary care agreement on November 7, 2016 to avoid the child being removed from them without their consent. The child was transferred from the hospital to the home of foster parents.

After signing the voluntary care agreement, the parents were able to see the baby several days a week. A.J. was breast-feeding the child. She was also expressing milk for the baby who was in the care of foster parents. A.J. did not want the child receiving any food other than her breast milk.

On December 7, 2016, there was a case planning conference. In that meeting it was acknowledged that the parents had attended their access visits regularly and they had expressed a willingness to accept community supports. Although there were still a number of concerns, the Director was prepared to allow the baby to return home if community supports were put in place.

On December 8, 2016, the baby was returned to the parents. One of the conditions in the community support agreement was that the parents would abstain from the use of alcohol and illegal drugs. At the time of the exchange, the father became upset regarding the requirement that he remain alcohol-free.

The next issue that arose regarded the weight of the baby. The mother was feeding the baby 100% breast milk. This was contrary to the advice of the lactation specialist, who had advised of the need, during the transition, to provide formula top-up feedings. A midwife had also emphasized the importance of allowing the formula top-up if the baby was hungry. In response A.J. stated that she believed the baby had to work for her food and the formula milk had unhealthy impurities for the baby.

There were many discussions between the authorities and the family regarding A.J.’s refusal to allow formula top-up feeding. D.K. secretly did some formula top-ups but this created conflict between the parents. The mother had dumped into the sink the formula on at least one occasion. The mother also stated that the father was projecting his addiction onto the baby by allowing her to drink formula because he was not allowed to drink alcohol.

The parents were to bring the baby into a clinic for scheduled visits. On December 13, 2016, the baby was weighed at the clinic. A loss was noted of 3.5 ounces over four days since the last weigh-in. Although the testimony and charts did not conclusively demonstrate that the baby was losing weight in their care, the medical professionals were concerned regarding the refusal to give the baby formula and whether the baby was thriving in the care of her parents.

On December 15, 2016, the child was formally removed from the home. The baby went back to the foster parents and gained weight.

 On February 9, 2017, an interim s. 35 order was made, placing the child in the custody of the Director and granting the parents reasonable access, supervised at the discretion of the Director. There were some concerns raised during these supervised visits, although on the appeal court’s review of the evidence and exhibits these concerns may have been overstated. What is clear is that when questioned about parenting skills, the father got aggressive. This occurred on February 14, 2017 and the RCMP (provincial police) had to be called to attend. Following this visit, access was terminated until the parents signed a conduct agreement.

On March 8, 2017, the matter was in Provincial Court for the commencement of the protection hearing. The Director also spoke to an application for a parental capacity assessment. The parents were asked by the court if they would participate in the assessment and they declined. No parental capacity assessment was ordered at the time.

On April 28, 2017, A.J. sent an email to a social worker, Melanie Crowston, to schedule future access dates but also wrote the following:

“God is doing a great work here. And believe me; you want the wicked and corrupt things addressed, because everyone suffers when evil is allowed to harm you and families. So we need Jesus to clean up the corruption and bring justice back to this place. How filthy and corrupt your job is and the people you work for. I am ashamed for you. It is evil. I’m sorry you work for such an ugly corrupted company too.”

As evidenced by this email, the parents continued to have difficulty working cooperatively with others. The mother often demonized those seeking to help her. For example, the parents were asked to leave the parish they were attending. On April 29, 2017, the pastor, on the recommendation of the church leadership, called the police to see what steps were needed to get a restraining order against the appellants. The parents returned to the church on May 3, 2017 and caused another disturbance at a support group meeting. The pastor then sent the parents an email indicating that they were no longer welcome to attend the church.

On May 10, 2017, A.J. sent an email to them in which the counsel (lawyer) for the Director stating the following:

“Be prepared for your house to see a very large debt come across and bankruptcy due to the criminal charges against the court system and the ministry of children and youth and particularly the judicial system that has imposed the degradation of children and harm to the families. The Lord Jesus has now come in to judge and he has seen the demise of what He had set in place for good has now been corrupted and covered in greed and filth.” unquote

The trial judge stated that the email “could be perceived as threatening”. At this stage, correspondence was being directed through the office of the Director because the parents refused to communicate with the social worker.

On May 17, 2017, there was a disturbance at the Emmanuelle Church in West Kelowna. The police became involved. The trial judge heard evidence from a youth pastor and an RCMP officer who were present at the May 17th disturbance. The parents were arrested and criminally charged for the disturbance. D.K. cooperated with the arrest but A.J. “rolled around on the ground” and did not cooperate. The parents allegedly wanted to cleanse the Church of evil influences. On that same day the parents had a scheduled access visit with their child, but they missed the visit because they were in custody. At this point the Ministry decided to apply to court to ensure that the parents had no further access. The Director was firm in its position that a continuing care order in the first instance was in the best interests of the child.

On July 27, 2017, the parents attended the Kelowna Police detachment for a supervised visit. The father had a subpoena he wanted to serve on a social worker and became upset when the other social worker would not accept it on her behalf. This resulted in tension in the room and arguments by the parents. The father continued to argue loudly despite being asked to stop by the social worker, but the visit eventually ended without incident.

On August 3, 2017, the protection hearing continued. The trial judge ordered that the parents participate in a parental capacity assessment. The trial judge further ordered that the parents have no further parenting time until they complied with the order for the assessment. The hearing was adjourned to October 16, 2017.

At the October hearing, the trial judge heard that the parents continued to attend churches with the goal of cleansing them from demonic influences. The parents had also refused to participate in the parental capacity assessment.

At trial, A.J. testified that she had an application pending to change the name of the child. She wanted C.J. to have a hyphenated first name including Jesus and a middle name of JoyoftheLord. She was also applying for a change in her first name to the Risen Lord Jesus–A, a new middle name of Refinersfire–Deanne, and a change in her last name to add the name Christ.

One last issue in this case was the conduct of the appellants at trial. First, they refused legal aid assistance and maintained that their legal counsel was the Lord Jesus. Second, the parents verbalized words that were not discernible to the court; they appeared to be speaking in tongues. They spoke in tongues to their stuffed animal, a lion, and claimed that through this lion they were hearing directly from their counsel the Lord. Third, when cross-examining witnesses, the appellants advised each witness that it was their lawyer Jesus Christ asking the questions through the voice of the parent. Fourth, the trial judge found the parents not to be credible witnesses.   

Surely by now, you have (as I have) presumed that this particular couple are in need of psychiatric treatment. That is the nice way to say it.  Another way to say it is that these two parents are as nutty as a fruit cake in which the nuts are prominent in the cake.

From the outset, the Director has had protection concerns regarding the capacity of the appellants to parent. There had been concerns regarding mental health, domestic violence, an unwillingness to follow medical directions for the child, and an inability to cooperate with those who could support them.

The appropriate standard of review of court decisions to be applied by the BC Supreme Court on appeal is pursuant to s. 81 of the Act in which it says;

“The scope of appellate review, pursuant to s. 81 of the Act is narrow. This Court does not re-hear the matter and substitute its own findings. This Court can intervene only if the trial judge made an error of law or seriously misapprehended the evidence. There must be an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack of factual support for the judgment.” unquote

The question of custody of an infant is a matter which peculiarly lies within the discretion of the trial judge who hears the case and has the opportunity (generally denied to an appellate tribunal) of seeing the parties and investigating the infant’s circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.

The appeal is not a trial de novo. (new trial) There cannot be a review of the evidence before the Learned Trial Judge and a substitution of a judgment. The decision cannot be set aside unless I the appeal court finds that the Learned Trial Judge made an error at law, erred in principle, disregarded significant material evidence that there was a lack of factual support for the judgment, or that the award was clearly wrong. It is clear that the scope of appellate review is narrow and the trial judge is entitled to considerable deference. (consideration of his or her decision) All Courts of Appeal can only intervene where the trial judge made an error of law, seriously misapprehended the evidence, did not take all relevant factors into account or considered irrelevant factors, or the decision lacked a factual foundation.

Where the main issue is what is the best interests of a child, all relevant factors must be considered in determining the child’s best interests, including for example:

(a)  the child’s safety;

(b)  the child’s physical and emotional needs and level of development;

(c)  the importance of continuity in the child’s care;

(d)  the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;

(e)  the child’s cultural, racial, linguistic and religious heritage;

(f)  the child’s views;

(g)  the effect on the child if there is delay in making a decision.

A child needs protection in the following circumstances:

(a)  if the child has been, or is likely to be, physically harmed by the child’s parent;

(b)  if the child has been, or is likely to be, sexually abused or exploited by the child’s parent;

(c)  if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child;

(d)  if the child has been, or is likely to be, physically harmed because of neglect by the child’s parent;

(e)  if the child is emotionally harmed by

(i)  the parent’s conduct, or

(ii)  living in a situation where there is domestic violence by or towards a person with whom the child resides;

(f) if the child is deprived of necessary health care;

(g)  if the child’s development is likely to be seriously impaired by a treatable condition and the child’s parent refuses to provide or consent to treatment;

(h)  if the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care;

(i)  if the child is or has been absent from home in circumstances that endanger the child’s safety or well-being;

(j)  if the child’s parent is dead and adequate provision has not been made for the child’s care;

(k)  if the child has been abandoned and adequate provision has not been made for the child’s care;

(l)  if the child is in the care of a director or another person by agreement and the child’s parent is unwilling or unable to resume care when the agreement is no longer in force.

The Court of Appeal had to deal with a number of issues. The first one was—
1.   Was it a legal error for the trial judge to find that the Director did not discriminate against the appellants?

The appellants did not set out, beyond the mere assertion, how they have been discriminated against as a family. They stated in their reply: “We request our Rights as Christian parents to be not discriminated in our way to care for our Child.” They note the trial judge stated that he was himself a Christian and did not have an issue with their Christian family values. From this they concluded that the trial judge had no issue with their way of parenting. From their submissions, it is unclear where exactly the discrimination on the basis of religion is alleged to have occurred.

A fair reading of the decision established that the trial judge considered the issue of discrimination on the basis of religion. The trial judge rejected that claim, stating that religion was not on trial.

The issues raised in the appeal is not about the parent’s freedom of religion. Naturally they have that freedom, as do all members of our society. Christians continue making up a significant portion of Canada’s overall population and collectively are in no way seen as having negative parenting values. Christianity is not on trial.

Further, the parent’s belief in direct revelation from God or in using the gift of tongues is not on trial. Home birthing is not on trial. The right not to use vaccinations or have ones child not use vaccinations is not on trial.

The parents made it abundantly clear throughout in their  appeal hearing that they believe t that the only reason their child had been removed was because those making the child protection decisions are persecuting them (parents) because of their Christian beliefs. They are entitled to that opinion, but that is not the view of the Appeal Court in this matter.

With respect to the Director’s concerns regarding mental health, the appellants pointed out that this could be discrimination based on disability. They stated that people with disabilities have the right to have children, but they may need some supports. The comment about the need for support is valid but the trial judge addressed this point. The trial judge specifically discussed whether the parents could take care of the child with the proper supports in place.

However, the trial judge found that the parents rejected support because they tended to demonize those who have tried to help them with parenting such as churches, Christian families and social workers. The trial judge was of the opinion that putting supports in place was no longer a viable option.

None of the appellants’ assertions make any connection, much less a nexus, between the Charter rights and freedoms alleged to be violated and the concerns of the Director which were accepted by the trial judge.

The appellants had not proven discrimination against them as a Christian family or on the basis of disability. The trial judge was correct to reject the discrimination argument.

Did the trial judge err in not providing reasons before granting the protection order?

 The appellants alleged that the trial judge erred by not stating the precise protection concern as required under the Act. Although the trial judge could have been more precise, he certainly articulated the reasons for granting the continuing custody order. He first referred to the law and the guiding principles in the Act.

The law is clear. The court follows the guiding principles set out in section two of the Child, Family and Community Service Act. The paramount consideration is the safety and well-being of the child. If with proper supports the safety and well-being of the child can be met in the home of the parents, then the family is the preferred environment for the care and upbringing of the child.

The trial judge stated that the Director was relying on the likelihood of physical harm to the child based on the parents’ neglect] and the parents’ inability or unwillingness to properly care for the child in arguing that the child was in need of protection. That his findings were based on the Act was implicit in his analysis and his conclusion the child is in need of protection.

 One of the obvious examples of the trial judge’s reasons is where he noted that there is some level of family violence. He found that although the evidence was somewhat inconsistent, there was certainly evidence of ongoing conflict between the parents. At trial, A.J. denied that she made the allegations apart from conceding that D.K. had covered her mouth with his hand. D.K. (the father) testified that to stop her from screaming and crying, he went upstairs and put his hand over her mouth and told her to be quiet. He denied ever choking her or assaulting her or tying her up. The trial judge found that both parents lacked credibility with respect to this testimony. The trial judge also discussed the expert testimony regarding the impact of domestic violence on children. The trial judge’s concern regarding domestic violence fits within  the Act.

The trial judge also set out the concerns with A.J.’s mental health consistent with the Act. While the appellants stated that it was not reasonable for the trial judge to find mental health concerns, the findings regarding mental health were based on the record (e.g., testimony of Dr. Hautala). The appellants stated that the concerns regarding the mental health of A.J. were based on the fact that she speaks in tongues. If it were just based on A.J. speaking in tongues they might have a point, but there were other behaviours raising mental health issues such as the conflict A.J. has with all those around her, including other Christians and her parents. In any event, if A.J. wanted to demonstrate she had no mental health issues, her opportunity would have been to undergo a parental capacity assessment. Despite this being ordered by the court, both parents refused to undergo the assessment. The trial judge discussed the difficulty that put the court had.

The trial judge was mindful that the Act states that the family is the preferred environment for the child if, with supports, it can provide a safe and nurturing environment The trial judge discussed whether the parents could take care of the child with the proper supports in place.

The trial judge found that the parents had limited support because they had conflict with those who could have helped them with parent in—churches, Christian families, their parents, midwives and doctors, social workers and  anyone holding a position of authority over them. The trial judge noted that the parents could have had the support of a freely appointed lawyer, but they instead chose to claim that Jesus Christ was their lawyer, and also that Jesus Christ was their only witness. Their statements are proof that there is something very wrong in their thinking.

I have to presume that they really believed that Jesus was really alive and speaking to them in their minds and advising them how to defend themselves during the trial and that Jesus told them that what they did was not morally or legally wrong.

Back in 1971 and 1972, I studied abnormal psychology at the University of Toronto. I also counselled mentally ill prisoners in a correctional facility in Toronto for a year. This certainly doesn`t make me an expert in this subject but I do know enough to comment on this issue.

 A delusion is a false, unshakeable idea or belief, which is out of keeping with a person`s educational, cultural and social background. A delusion is held with extraordinary conviction and subjective certainty. A delusion is experienced as an everyday notion or assumption rather than a belief. This is quite unlike a subjective religious view. A deluded person quite matter-of-factly declares herself to be able to communicate directly to Jesus or some other religious entity.  It is not a credible statement but merely a comment on how the person views reality.

Delusions are always self-referent which is the belief or notion that always has something to do with oneself. Of course, all religions, and especially this particular couples`  spiritual belief is extremely personal. One who is highly religious does not have delusions about remote places or times without it having some reference to an entity that is greater than that person Delusions have generally been classified according to their content and religious delusions are just one of many kinds of delusions that are  frequent and often highly significant. Religion often forms the content of other types of delusion, for example, persecutory delusions or delusional misidentification.

Even though what is believed about Jesus that he was a real person is factually correct.  A famous historian in the times when Jesus was alive stated in one of his reports that Jesus was a Jew who was put to death on the orders of Pontius Pilate. Jesus really existed. That is a fact. On the other hand; it is a delusion if a person claims he or she communicates with Jesus in this current era.
Psychopathologically speaking, a delusion cannot be shared between two persons.  If one parent really believes that he or she is communicating with Jesus which is a figment of their imagination, one parent won`t see Jesus in the same manner as the other parent. They may mouth their beliefs in conjunction but that is all it is—mouthing what the other parents says.

Religious delusions do not only occur in people who don’t attend religious services and   yet are regarded as being religious, they also encompass organized religion, church, temples or mosque attenders also. It is the nature of delusion that the content is of great personal significance to the deluded person. Now I will take you back to the court decision.

The trial judge found that the parents’ focus “is always centred on their perceived calling as the mouthpiece of God, and they allow no room for seeing the world through the lens of a child”, as evidenced for example by them choosing to change the child’s name to “Jesus” and “Joyoftheworld”. Consistent with the Act, the trial judge was concerned that the parents were unwilling to follow the medical advice of doctors at the time of the birth, the medical advice when the baby was taken to the hospital following the birth, and the advice of medical professionals regarding the need to top up the baby’s breast-feeding with formula when the child was living with the parents.

 There were were other concerns to establish that permanent removal is in the best interests of the child.

Orders made at the protection hearing

If the court found that the child needed protection, it must make one of the following orders in the child’s best interests:

(a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director’s supervision for a specified period of up to 6 months;

(b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director’s supervision, for a specified period in accordance with section 43;

(c) that the child remains or be placed in the custody of the director for a specified period in accordance with section 43;

(d) that the child be placed in the continuing custody of the director.

(1.1) When an order is made under subsection (1) (b) or (c), the court may order that on the expiry of the order under subsection (1) (b) or (c) the child

(a) be returned to the parent, and

(b) be under the director’s supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (d) that the child be placed in the continuing custody of the director unless—

(a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found,

(b) a parent is unable or unwilling to resume custody of the child, or

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child’s best interests to be returned to the parent.

If an order was made under section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the director supervise the child’s care for a specified period of up to 6 months.

Based on the foregoing, it was clear that there was sufficient evidence before the trial judge to allow him to come to the conclusion that a continuing custody order was warranted in the circumstances. No further hearing was necessary

The court of Appeal agreed with the findings of the family court judge. The appeal by the parents was dismissed.