R. v. Wanamaker, 2011 ABQB 310

Court of Queen ’ s Bench of Alberta Citation: R. v. Wanamaker, 2011 ABQB 310 Date: 20110504 Docket: 110101433Q1 Registry: Calgary Between: Her Majesty the Queen Plaintiff - and - Erik Brian Wanamaker Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _____________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice Hunt McDonald _______________________________________________________ Introduction [ 1 ] Erik Brian Wanamaker (“Mr. Wanamaker”) stands charged with two offences: (

a) That he, between the 4th day of December 2009 and the 16th day of December 2010, both dates inclusive, at or near Calgary, Alberta did possess child pornography, contrary to

section 163.1 (4) of the Criminal Code of Canada .

(

b) That he, between the 4th day of December 2009 and the 16th day of December 2010, both dates inclusive, at or near Calgary, Alberta did access child pornography, contrary to

section 163.1 (4.1) of the Criminal Code of Canada . [ 2 ] Mr. Wanamaker has plead not guilty to each count. Facts and Evidence [ 3 ] At the time of the alleged offences Mr. Wanamaker lived at a home he rented at [...] Bowness Road, N.W. in Calgary Alberta. The house was a bungalow. There was a living room, kitchen, bathroom and two bedrooms plus a smaller room which was used as a home office or computer room. [ 4 ] There was a 16 foot trailer located near the fence in his backyard which he at times rented to tenants. [ 5 ] Mr. Wanamaker ran a business called Reasonable Renovations.

In July 2010 he hired Shaun Patrick Orr to do general carpentry work. [ 6 ] After commencing work with Mr. Wanamaker, Mr. Orr left the Booth Centre at the Salvation Army where he was living and rented the trailer in Mr. Wanamaker’s backyard. The trailer had no washroom and accordingly Mr. Orr used the facilities in Mr. Wanamaker’s house. [ 7 ] Mr. Orr testified that Mr. Wanamaker was paranoid about making it clear to both himself and Mr. Wanamaker’s roommate that they were not to touch any of the computer equipment in his office. Mr.

Wanamaker told them that he had a continuous video surveillance system set up in his bedroom and office to ensure that no one breached that understanding. [ 8 ] Mr. Orr testified that Mr. Wanamaker told him he had voice recognition and retina scanning equipment to log onto his computers and that he had previously worked for the police. [ 9 ] Mr. Orr testified that when Mr. Wanamaker was at home after work he spent a few hours a day on his computers in his office behind a closed door. [ 10 ] One time when Mr. Orr went to knock on the door of the office to discuss landscaping work with Mr.

Wanamaker, the door was not latched and opened slightly. Mr. Orr said that he caught Mr. Wanamaker viewing child pornography on his computer. [ 11 ] Mr. Orr explained what he saw was a still image on the screen of a naked girl with long hair and a naked young boy in a profile shot showing them from the waist up. The young girl had no breast development. Mr. Wanamaker quickly touched a button so that the screen saver came on, thereby hiding any images that he was viewing. [ 12 ] The rental and work relationship between the two men ended when there was a disagreement between them over money. Mr.

Orr said $800 was owing by Mr. Wanamaker to him for wages and Mr. Wanamaker made allegations that rent was owing by Mr. Orr to him. There was a physical altercation and in the middle of September Mr. Orr moved back to the shelter.

[ 13 ] Some months later Mr. Orr was apprehended by the police bike squad for an outstanding LRT ticket. He retorted to the police that instead of hassling him over an unpaid LRT ticket that they should hassle people like Mr. Wanamaker who views child pornography. [ 14 ] Mr. Orr was subsequently interviewed by police members of the Integrated Child Exploitation Unit (ICE Unit). [ 15 ] The Crown called two other lay witnesses to corroborate Mr. Orr’s submissions regarding Mr. Wanamaker spending hours behind the closed door of his office. [ 16 ] Michael James Elliott worked for Mr.

Wanamaker from approximately mid-September until November 2010. Previous to renting the trailer in the backyard, he had been a resident at the Calgary Drop-In Centre. [ 17 ] Mr. Elliott testified that he was told by Mr. Wanamaker that he was not allowed to touch Mr. Wanamaker’s computers. He also said that Mr. Wanamaker would always have the door to his office locked. [ 18 ] Mr. Elliott moved from the trailer into the house when Mr. Wanamaker’s previous roommate left sometime in November 2010. Mr. Elliott was only resident in the house for one day when he was kicked out back to the trailer when Mr.

Wanamaker indicated that another tenant was moving into the house that had more money to pay for rent. Mr. Elliott confirmed that Mr. Wanamaker was always in his office unless he was cooking in the kitchen. Mr. Elliott was in the trailer in the backyard when the police conducted their search of Mr. Wanamaker’s home in December 2010. He gave evidence that there was a locking door handle on the office prior to a deadbolt being installed sometime near the end of his tenancy. [ 19 ] The final Crown witness was Raymond Todd Pelley. He also was a construction worker who Mr.

Wanamaker hired to assist in his renovation business. He previously lived at the Calgary Drop-In Centre. [ 20 ] Mr. Pelley rented the second bedroom in the home that had been occupied by Mr. Wanamaker’s other roommate at the time that Mr. Elliott was living in the trailer. [ 21 ] Mr. Pelley indicated that there was a deadbolt installed on the door to the office and that the office was locked and specified to be off-limits by Mr. Wanamaker. [ 22 ] Mr. Wanamaker told Mr. Pelley the same story that he had previously told Mr. Orr. Mr.

Wanamaker said that he conducted surveillance for the police and for some apartment building. [ 23 ] Mr. Pelley was at work when the police attended to search the premises for child pornography and when Mr. Wanamaker was arrested. He indicated that when Mr. Wanamaker was at home he was constantly in his office (estimated by Mr. Pelley to be approximately 95% of the time), usually behind closed doors but sometimes with the door open if Mr. Wanamaker was present in the office. [ 24 ] When Mr. Pelley commenced working for Mr. Wanamaker he had been sleeping on the couch in the house.

After a while they had a disagreement so he moved out and went back to his trade. Just before Christmas he ran into Mr. Wanamaker again and moved into the second bedroom of Mr. Wanamaker’s home. He was not employed by Mr. Wanamaker during this time. [ 25 ] Based on information that Mr. Orr provided to the ICE Unit in his interview with them, a warrant was obtained to search Mr. Wanamaker’s residence and vehicle. [ 26 ] The search warrant was executed on December 16, 2010 by members of the ICE Unit, comprising members of the Calgary

City Police and RCMP officer Sean Taylor who is a RCMP forensic expert in analysis of computer devices. [ 27 ] When the ICE Unit arrived at the residence, Mr. Wanamaker was detained and a search was conducted. Based on a DVD found in the home which was taken to the ICE Unit for viewing, Mr. Wanamaker was then arrested on charges of possession and accessing child pornography. [ 28 ] A thorough and systematic search was conducted by approximately eight officers.

Various computers, computer equipment, cell phones and DVDs’ were seized and catalogued in the Computer Forensic Examination Report marked as Exhibit 5 authored by Constable Taylor of the RCMP. [ 29 ] In this report, Constable Taylor concluded that only the black computer tower (Item 4) and 4 DVDs (Items 11, 12, 13 and 14) seized from Mr. Wanamaker’s office had data associated with the child pornography investigation. [ 30 ] The Court also heard from Constable Richard Wall who was the coordinator of the search as well as the Exhibits Officer.

He provided evidence to the Court that as each room was searched, seized items and their locations at seizure were noted. Each item was catalogued as an Exhibit. He photographed the residence and each seized item while the search was being conducted. [ 31 ] Constable Taylor was qualified as an expert in forensic analysis of data storage devices, including computers. He is currently employed as an RCMP officer working with the ICE Unit of the Calgary Police. Constable Taylor was the forensic technician on scene when the search warrant was executed.

He explained the process of using a “write blocker” when examining a computer to prevent him from altering the data on the hard drive. Using the write blocker, he made an exact copy of the hard drive to conduct his forensic analysis. The seized black computer tower had four hard drives. The first was a 1.5 terabyte drive. Hard drives two and three were both 1 terabyte drives and the fourth was a 640 gigabyte drive. These hard drives contained five partitions of data. The computer was password protected and had a user account named “Erik”. Constable Taylor testified that Mr.

Wanamaker’s computer had the largest storage capacity of any personal computer he has ever examined. He stated that one of the partitions in the black computer tower alone had 27,048 unique photos stored on it. Constable Taylor assigned what he called a Hash Value which is a unique number to each image that was contained on the computer on the four DVDs. [ 32 ] The black computer tower had a number of programs installed. A program called “PRIVACY ERASER PRO” was installed on the computer.

Its function is to hide what activities took place on the computer by erasing internet history, securely deleting usage history files and otherwise hiding what a user on a computer was doing. Mr. Wanamaker’s computer was set to delete the recent documents list from Start Menu-Documents, the recycle bin, Windows Media Player Recent File list, internet cache, browser history, cookies, typed URLs and many other data artifacts. The computer also had a torrent file sharing program called “VUZE” installed.

This program allows a user to search for a desired item and use a torrent file to download the data on to the user’s computer. It is used to collect large amounts of data from other program users that are sharing any kind of data file, including pictures and videos. In addition, an application called ASHAMPOO was installed on the computer which Constable Taylor advised is not a typical application one uses to burn an optical disc.

Each of the four seized DVD’s analyzed in the Computer Forensic Examination Report by Constable Taylor were burned by using an ASHAMPOO program. [ 33 ] Constable Taylor performed a search of the word “Lolita” on the computer. He informed the Court that the term “Lolita” is a commonly used term for child pornography. He found an enormous number of hits on the term which, in his opinion, indicated that the user of the computer had been browsing “Lolita” related websites and perhaps downloading some of the files onto to his computer.

Exhibit 6 shows 39 pages of print outs of “Lolita” websites Constable Taylor obtained off the black computer tower. Constable Taylor believes some of these sites were accessed on the computer but cannot confirm that with 100% certainty as the internet history had been erased, likely by the Privacy Eraser Program. Most websites had “colourful” names such as “free Lolita porn”, “11 year Lolita nude web pussy”, “underage Lolita nude gallery”, “ as headings. Constable Taylor tried to access some of the web sites but was not able to gain access as they were not still active.

He indicated that generally child pornography web sites are not up for any great deal of time because by their nature, they are illegal and are shutdown very quickly. As the content of the websites was not established by the Crown, little weight is being placed on this piece of evidence. [ 34 ] There were a number of other materials found on the computer drives:

(a) 2,644 images of under age female models between the ages of five to fifteen years, wearing little clothing and posing provocatively; (

b) in another partition there were 29,088 photos of female underage models found in compressed files, of which 27,048 were digitally unique; (c) 38 videos of under age females models wearing little clothing and posing provocatively; (

d) Many deleted torrent files with suggestive names like “Innocent Lolita’s Nude Gallery.torrent” and “Underage Lolita Nude Gallery 100 pre-teens.torrent”. These torrent files indicate that files by these names were downloaded at one point but had since been removed; (e) 72 Naturist (nudist) movies depicting large groups of nude people of all ages participating in various activities such as bowling, volleyball, horseback riding, swimming and hiking. Of these videos, 63 contained children as young as five years old and seven of them depicted children as young as thirteen years old.

Several of the movies depicted nudist beauty pageants where female children who appeared between the ages of ten to fifteen years competed; (

f) four images depicting nude females between the ages of thirteen to seventeen posing in a sexually explicit manner; and (g) 2 images of under age female models aged eleven to fifteen years wearing very little clothing and posing provocatively. [ 35 ] The above list does not include the material found on the four DVD’s also seized from Mr. Wanamaker’s office.

These DVDs contain copious amounts of naturist videos and approximately one thousand still images of an underage female model called “Cherry”. [ 36 ] I spent seven hours viewing many of the images and confirm that the evidence I viewed support a charge of possession of child pornography against Mr. Wanamaker. There were thousands of child modelling images which included girls under the age of eighteen years. Many were in the age range of four to twelve years old. Most of the pictures were of scantily clad young girls posed in a provocative manner.

There were few naked photographs, but in the four naked images of young girls that I estimate to be between eleven to fourteen years, the focus was either on their breast development or on their labia. [ 37 ] When I say that the pictures of the young girls were posed provocatively, I mean that myriads of the images were sexualized poses focussing on the genital areas of the young girls, often with their legs spread and hips thrust out towards the camera in a provocative manner.

Alternatively, another prolific camera angle used by the photographer was of young girls taken from a rear view with their anal area protruding towards the camera. Some of the girls were dressed in corsets, garter belts, sexy lingerie, black fish net stockings and high heels. Such photos were especially found in the seized DVD titled “Cherry” referred to as seized Item 14 in the Computer Forensic Examination Report. [ 38 ] Defence did not present any evidence to the Court. Issue [ 39 ] The issue for the Court is whether the photographs and videos are child pornography and whether Mr.

Wanamaker possessed and/or accessed them. Law and Analysis

[40] The Criminal Code defines child pornography in s. 163.1(1), which reads: In this section, “child pornography” means (

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 inexplicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person underthe age of eighteen years; (

b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under theage of eighteen years that would be an offence under this Act; (​) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person underthe age of eighteen years that would be an offence under this Act; or (

d) any audio recording that has its dominant characteristic the description, presentation or representation, for a sexual purpose, ofsexual activity with a person under the age of eighteen years that would be an offence under this Act. [41] The Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2 , 2001 SSC 2, [2001] 1 S.C.R. 45 interpreted the“dominant characteristic” and “for a sexual purpose” language within the section.

McLachlin C.J., writing for the majority, stated atparas, 50 and 51: The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii), which targets possession ofvisual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a personunder the age of eighteen years”. The question is whether a reasonable viewer, looking at the depiction of the child’s sexual organ oranal region.

The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived asintended to cause sexual stimulation to some viewers. Family photos of naked children, viewed objectively, generally do not have as their “dominant characteristic” the depiction of a sexualorgan or anal region “for a sexual purpose”. Placing a photo in an album of sexual photos and adding a sexual caption could change itsmeaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer:see R. v. Hurtubise, [1977] B.C.J.

No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photoof a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the “dominantcharacteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”. If there is a reasonable doubt, theaccused must be acquitted. [42] There is no doubt in my mind that many of the images (thousands) are child pornography.

As I have detailed above, therewere thousands of child modelling images of under age girls, often scantily clad and posed in a provocative manner. There were also fourimages of naked young girls that I estimate to be between eleven to fourteen years old with the focus on their breast development or ontheir labia. For example, one image depicts a young girl, approximately eleven to fourteen years of age, who is squatting down facing thecamera and is naked except for her underwear located around her knees. The picture dominantly displays her labia.

In another there arethree young girls depicted undressing each other. I estimate the girls ages to be between eleven and fourteen. The girl on the left is fullyclothed and is depicted to be helping the girl in the middle take off her top. There is no doubt in my mind that these images have as theirdominant characteristic the depiction of a sexual organ or anal region for a sexual purpose and intended to cause sexual stimulation tosome viewers. These are but two examples within the thousands of pictures found within Mr. Wanamaker’s possession.

[ 43 ] In my view, the naturist videos depicting nude adults and children engaging in various activities do not fall within the definition of child pornography other than the nudist beauty pageants featuring female children between the ages of ten to fifteen years. I do not believe that the dominant characteristic of the videos was the depiction of sexual organs or anal regions, even though I am not convinced that Mr. Wanamaker possessed these videos for a purpose other than a sexual one. [ 44 ] Under Count 1 Mr. Wanamaker is charged with possession of child pornography pursuant to s. 163.1(4) of the Criminal Code , R.S.C. 1985, c. C-46. That

section reads: Every person who possesses any child pornography is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days. [ 45 ] Under Count 2 Mr. Wanamaker is charged with accessing child pornography pursuant to s. 163.1(4.1) of the Criminal Code . That

section reads: Every person who accesses any child pornography is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days . [ 46 ] In the recent case of R. v. Morelli , 2010 SCC 8 , the Supreme Court of Canada discussed what it means to access and possess child pornography. In a 4-3 split decision, Justice Fish, writing for the majority, stated as para. 14, 19, 25, 26, 66: [14] In my view, merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession.

Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1 (4.1) of the Criminal Code . ... [19] Essentially, there are thus two potential “objects” of possession of an image in a computer - the image file and its decoded visual representation on-screen. The question is whether one can ever be said to be in culpable possession of the visual depiction alone, or whether one can only culpably possess the underlying file.

Canadian cases appear implicitly to accept only the latter proposition: That possession of an image in a computer means possession of the underlying data file, not its mere visual depiction. ... [25] This is a sensible

interpretation for a number of reasons. First, and most important, because Parliament, in s. 163.1(4.1) of the Criminal Code , has made accessing illegal child pornography a separate crime, different from possession. In virtue of s. 163.1(4.2), a person accesses child pornography by “knowingly caus[ing the] child pornography to be viewed by, or transmitted to, himself or herself”.

[26] Parliament’s purpose in creating the offence of accessing child pornography, as explained by the then Minister of Justice, was to “capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic” (Hon. Anne McLellan, House of Commons Debates, vol. 137, 1 st Sess., 37 th Parl., May 3, 2001, at p. 3581). ... [66] Accordingly, in order to commit the offence of possession (as opposed to the offence of accessing), one must knowingly acquire the underlying data files and store them in a place under one’s control.

The presence of the icons might arouse suspicions regarding possession, but it does not alone support a reasonable inference that the appellant not only accessed the Web site and knowingly viewed illegal images located there, but also took the underlying data file into his control by saving it to the hard drive, or otherwise. [emphasis in original] [ 47 ] There is no doubt that Mr. Wanamaker clearly possessed the images. They were stored both on his black computer tower and on the four DVD’s seized from his private office. The computer was password protected and the only user account on it was named “Erik”.

His office was clearly off-limits to all other users of the residence. The office door had a door handle with a lock, and later a deadbolt lock installed that was used to keep the office locked to all those except Mr. Wanamaker. Mr. Orr and Mr. Elliott testified that Mr. Wanamaker’s office was strictly off-limits to anyone else in the house. Given that the images were saved on his black computer tower or burnt onto the four seized DVDs and Mr. Wanamaker was the only user of the office, he had knowledge and control over the data files and was therefore in possession of them. [ 48 ] There is no doubt that Mr.

Wanamaker knowingly accessed child pornography. Defence inquired from Constable Taylor whether someone either living in the house or a closely situated neighbour could download photos on to Mr. Wanamaker’s computer if they gained access to the internet using Mr. Wanamaker’s wireless router. Constable Taylor answered in the negative. Such a person could only download data on to their own computer - not onto Mr. Wanamaker’s computer. Furthermore, Mr. Orr testified to having seen Mr. Wanamaker access a photograph of a naked under age female with no breast development. Mr.

Orr was a credible witness; his information opened the investigation against Mr. Wanamaker leading to the seizure of child pornography and I am convinced that he came to know that Mr. Wanamaker possessed child pornography by catching him in the act of accessing child pornography on the computer in his office. Conclusion [ 49 ] Please stand Mr. Wanamaker. [ 50 ] Pursuant to the requirements of the Criminal Code and with reference to the overwhelming evidence against you, I find you, Erik Brian Wanamaker, guilty of both accessing and possessing child pornography. DELIVERED ORALLY this 4 th day of May, 2011.

Heard on the 22 nd , 23 rd and 24 th day of March, 2011. Dated at the City of Calgary, Alberta this 4 th day of May, 2011.

Hunt McDonald J.C.Q.B.A. Appearances: Jennifer Rees for the Crown Patrick D. Flynn for the Accused