Lorne Campbell, who is banned from watching or possessing pornography, was seen watching "Latin Lovers 2" on cable television between 2:30 a.m. and 4:30 a.m. with another resident at a Toronto halfway house.
During trial, the other man and the security guard on duty both testified that the Spanish-language program — which lasted an hour and 20 minutes, split in two episodes — was pornographic.
The trial judge watched a DVD version in court, fast-forwarding through and pausing to view the segments at issue.
Court documents show Campbell argued in his appeal that the judge "erred by not watching the entire DVD and therefore failed to consider the context of the program."
But the appeal court found the judge did, in fact, look at the context and was within his rights to determine the show was pornographic.
"The DVD was played in open court. The dialogue of the DVD was Spanish. There was no evidence that the appellant spoke or understood Spanish. There were no subtitles," the three-judge panel wrote in its decision.
"While the DVD was fast-forwarded in open court and paused to view the segments that the Crown alleged were pornographic, the trial judge saw the entire program."
Campbell also claimed the trial judge mistakenly determined that he meant to watch pornography in violation of his supervision order.
The appeal court, however, ruled there was "ample evidence" to support the finding, including the fact that Campbell flipped through channels and tried to hide that he was watching the show.
Campbell's lawyer, Jonathan Bliss, said his client was under a long-term supervision order after being convicted of possession of child pornography.