The Lawyer's Weekly
June 23, 1995

BBS kiddie porn

Distributed kiddie porn via computer bulletin board,
Ont. man convicted under new legislation

(Full text of judge's decision: R. v. Pecciarich, (1995) 22 O.R. (3d) 748)

by Lynn Niedzwiecki

TORONTO -- A 20-year-old Ontario man is the first person in Canada to be charged and convicted under new child pornography legislation of distributing child pornography through computer bulletin board systems.

According to one of two police investigators, the case, heard by Ontario Court (Provincial Division) Judge G.N. Sparrow, is also the first to deal with computer-distributed pornography, consisting here of electronically altered, scanned-in images and stories found to be written by the accused.

And in a unique twist, the Crown successfully applied to call a forensic psychologist at the sentencing hearing to recommend appropriate probation terms based on the expert's opinion that the accused is a latent pedophile who should be assessed and counselled because he may be dangerous.

"What's going on in this case is very extraordinary", said defence counsel John Collins, who adjourned sentencing to June 26 because non-disclosure of that testimony made it impossible for him to answer it without seeking instructions from his client.

* Answer in court

"I'm satisfied I'm going to be stuck with having to deal with this matter on the basis that the judge suspects [my client] is a pedophile so I'm going to have to try and answer that the next time we go in court", Mr. Collins, a Toronto sole practitioner, told The Lawyers Weekly.

"I don't know what I'm going to do", Mr. Collins frankly admitted, explaining that the sentencing rationale he's facing is that if his client is a pedophile, his distribution of child pornography incites other pedophiles.

Joseph Pecciarich, or "Recent Zephyr," as he is known in cyberspace, was charged Nov. 10, 1993 under ss.163.1(3) of the Criminal Code, after police seized evidence from a bedroom of his Mississauga, Ontario home linking him to lewd images and stories accessed predominantly through a bulletin board called the "Gateway."

* Offences created

Enacted in 1993, s.163.1 creates offences relating to child pornography, which is defined as:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means;
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or;

(ii) the dominant character-istic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or;

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Specifically, ss.163.1(3) makes it an indictable offence punishable by a maximum prison term of 10 years, or an offence punishable on summary conviction by a maximum jail term of six months and up to three years probation, to import, distribute, sell, or possess for the purpose of distribution or sale any child pornography.

* Commercial crime

Mr. Collins's position is that pedophilia has nothing to do with his client's sentencing since the charge of distributing this type of pornography is "a contravention really of a type of commercial crime".

But according to Crown counsel Phillip Enright, there was no evidence that Mr. Pecciarich fed his files to the BBS for any reason other than as a "labour of love".

Mr. Enright told The Lawyers Weekly he asked for a 60- to 90- day "symbolic jail sentence to mark society's disgust with this kind of stuff".

He also requested three years' probation prohibiting Mr. Pecciarich from being alone with children, operating any computer bulletin board or engaging in any computer bulletin board activity, and that he be assessed and counselled as recommended.

Mr. Pecciarich was offered a consultation with Crown expert Dr. Peter Collins, a specialist in sexual deviation with Toronto's Clarke Institute of Psychiatry, but has "steadfastly refused to be assessed", he added.

With the help of computer specialist and principal Crown witness Kevin Blumberg, police began investigating Mr. Pecciarich in mid-July 1993 as part of a special project to address several complaints from concerned parents whose children had accessed pornography on their personal home computers.

Using a BBS directory published in Toronto Computes, a free computer newspaper, Mr. Blumberg downloaded several files from bulletin boards advertising "adult files", including Gateway, which showed Mr. Pecciarich as co-systems operator, or "cosysop", under his code name "The World Famous/Recent Zephyr."

At trial, Mr. Blumberg testified that many of these files were identified as specially formatted "GIF" (Graphics Interchange Format) and "ZIP" (compressed text) files, the latter requiring particular software to restore original text.

He also explained how a scanner copies external images, such as pictures, to a computer's hard drive where they can be significantly altered with a program that can, for example, remove clothing and "draw in" body parts, including genitalia.

Mr. Enright said that in addition to writing and uploading short stories about children having sex with other children, adults, and even animals, Mr. Pecciarich had scanned and altered children's clothing ads clipped from catalogues and flyers.

He said he proved "beyond any shadow of a doubt, and Her Honour so found, that some of these picture manifestations came from children who had modelled for Zellers and the Byway because we found the very clippings right in his bedroom.

"And when you compared the picture of the non-altered ordinary child displaying back-to-school clothes ... to the finished product which was on the bulletin board, all of a sudden you saw this child, this 10-or 11-year-old girl, in a nude position with somebody else manipulating, doing some sexual act with her and you could tell it was exactly the same photograph which had simply been altered."

* Evidence seized

Among evidence police seized in their Oct. 1993 search of Mr. Pecciarich's bedroom were:

From Mr. Pecciarich's back-up tape, the Crown produced other exhibits, including a list of all files referred to in the s.163.1(3) charge and a brief description of each, headed "Recent Zephyr's Master File List" plus a two-page list of files "written by Recent Zephyr," including dates, brief description and details of their development and uploading to the BBS.

Mr. Enright explained that, absent evidence that Mr. Pecciarich had used children as actual models for the images he produced, his aim was to find a way to help the accused rather than unduly punish him with a long jail term. The Crown elected to proceed summarily.

Everything Mr. Pecciarich created and distributed, he said, "are his fantasies and everything is just the product of his warped mind, with the exception of these Zellers printouts -- that's the closest he came to abusing any child, but of course that's just a picture of a child." "I'm sure that they would be mortified, the parents of these children, they'd be totally mortified if they knew ... " At trial, Mr. Collins admitted the impugned images and texts were obscene but argued that the Crown had failed to prove his client had distributed them, in fact or at law, or that uploading even constitutes distribution.

* Pornographic files

Moreover, Mr. Collins contended that all documents, computer images, texts or catalogues required to prove that it was Mr. Pecciarich who uploaded the pornographic files are hearsay, so distribution is a moot issue.

On cross-examination, Mr. Blumberg did acknowledge that a bulletin board's systems operator could alter uploaded images and insert a subscriber's name as the source and, furthermore, that an imposter could upload files using another subscriber's name and telephone number, unbeknownst to subscribers, although a call-back verification system may or may not identify the uploader.

The case is most significant for the fact his client was convicted, said Mr. Collins, adding he will appeal conviction and any jail sentence.

Claiming "the Crown's prosecution was built on a very frail house of straw" because it relied for the most part on hearsay evidence, Mr. Collins contended no evidence was produced at trial to establish his client uploaded the pornography police took from the Gateway bulletin board, which Mr. Pecciarich did not operate.

"There's no doubt that trying to prove these cases is difficult and with all due respect to the judge, I think that she became more concerned with the way in which she could devise a conviction because of the fact that it appears it's difficult to successfully prosecute people for this sort of thing", Mr. Collins said.

"I mean, let's face it, it's not a pretty allegation, if it's true."

But calling Gateway's systems operator, Michael Keating, as a witness to establish Mr. Pecciarich's identity and complicity, which Mr. Collins argued should have been done as a way around the hearsay problem, was not an option for the Crown.

A bench warrant has been issued for Mr. Keating who faces the same charge as Mr. Pecciarich and is believed to have left the country. Moreover, he could not identify Mr. Pecciarich since the two had never met.

Consequently, Mr. Collins said, the trial judge "had to believe what the Gateway bulletin board computer was saying to her about my client's complicity -- in other words ... how do you believe a machine?

"You can't judge the credibility of a machine and the trouble with the machine is that it's so sophisticated and the evidence was quite clear that it's so easy for other persons to have done what it's alleged my client did", he said.

"It was enormously dangerous to rely on what is essentially hearsay evidence from a machine that my client was responsible for this."

But if proof is a problem in this type of case, Mr. Collins believes there's no reason to conclude the authorities won't be able to match user technological sophistication "to devise ways of using their equipment to intercept this stuff and do so in a way that provides direct evidence and direct proof of who's doing it."

Amending legislation to make this type of crime easier to prove "would make very dangerous inroads on what are currently fundamental principles about hearsay evidence and proof of the authenticity of documents", he said.

* Computer alias

Dealing first with the issue of authorship, Madam Justice Sparrow concluded that Mr. Pecciarich was "Recent Zephyr" because many of the documents in his computer contained the alias where the creator's name would be expected to appear.

She rejected defence argument that the documents could have been downloaded to Mr. Pecciarich's computer, without his knowledge.

The special software configuration that, according to one of the investigating officers is required to copy files to a backup tape without the operator's consent was not found.

Moreover, supported by Phipson on Evidence, 13th ed. (1982), the trial judge considered the accused's signature in the same place as the name "Recent Zephyr" on a matching image as original, or real circumstantial evidence that Mr. Pecciarich is "Recent Zephyr."

"It is logical to assume that someone would not leave his purported signature or name on illegal material stored on a backup tape if he were not somehow connected to it, or even involved in its creation," she reasoned.

Quoting with approval from R. v. Bastien (1968), 20 C.C.C. (2d) 562, a British Columbia County Court decision, the trial judge also rejected defence argument that proof of authorship is impossible unless the documents are used in violation of the hearsay rule.

Rather, in considering the files as "original circumstantial evidence that the accused and the name 'Recent Zephyr' are so frequently linked in a meaningful way as to create the logical inference that they are the same person," she relied on R. v. Morrissey (unreported, March 14, 1995), where the Ontario Court of Appeal said:

"A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation."
Consequently, it is conjecture to suggest that documents on Mr. Pecciarich's backup tape, purportedly authored by him, were created by an imposter but knowingly stored by him, she said.

Mr. Collins contended that while the evidence the judge reviewed in considerable detail may point to his client as the creator of child pornography, and even some of the impugned files, it did not prove he uploaded the material to the BBS or downloaded it to his computer.

But Madam Justice Sparrow disagreed, adopting the Supreme Court of Canada's position in R. v. McCrum, [1966] S.C.R. 254:

"I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused."
Turning next to the question of distribution, she accepted the Crown's argument that evidence the files had been uploaded to the publicly accessible BBS is evidence of distribution, which is complete upon uploading, and noted caselaw distinguishing sale and distribution requires more than retail sale to the public for a distribution charge.

She acquitted Mr. Pecciarich on another charge of unlawfully distributing obscene pictures because there was no evidence he uploaded the material in question to the bulletin boards on which they appeared.

Copyright © 1995 by Lynn Niedzwiecki. All Rights Reserved. Reprinted with permission.