R. v. Cockell, 2012 ABQB 149

Court of Queen ’ s Bench of Alberta Citation: R. v. Cockell, 2012 ABQB 149 Date: 20120309 Docket: 090112517Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brian Allan Cockell Accused Restriction on Publication Identification ban – See the Criminal Code,

section 486.5. By Court Order, information that may identify the complainants must not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________

[ 1 ] The Accused has been charged with four counts of child internet luring, two counts of sexual assault, two counts of sexual interference, one count of abduction, two counts of possession of child pornography and one count of making child pornography. Counts 1-11 relate to three complainants whereas count 12 is a stand alone charge. I will deal with the charges respecting each complainant individually. A.

The Complainant D.P. [ 2 ] Respecting the complainant identified as D.P., the Accused has been charged with three counts of child internet luring, one count of sexual assault, one count of sexual interference and one count of abduction. [ 3 ] On January 22, 2009 D.P. provided a video statement pursuant to s. 715.1 of the Criminal Code . Defence counsel agreed that this statement is admissible. [ 4 ] In brief compass, during this two hour video statement D.P. stated that she first met a person she knew as “ Brian ” in an on line chat service known as Nexopia in November 2008.

She told “ Brian ” that she was 12 years old at the time and a student in grade seven at a school in Gibbons. [ 5 ] Her cell phone number was 780-221-[...]. “ Brian ” told her that he had a Blackberry with number 780-686-[...] . [ 6 ] They exchanged a series of text messages which were exhibited before me. He told her that he was 23 years old. [ 7 ] D.P. stated that she arranged to meet with him at the ice rink in Gibbons on either Boxing Day, December 26, 2008 or New Year ’ s Day, January 1, 2009.

On attending in that location she observed a lone male driving what she said was a black Ford pickup truck. “ Brian ” had previously sent her photographs of himself and she recognized the driver as being the subject of the photographs. [ 8 ] They drove to his residence in Edmonton and had sexual intercourse in his bedroom. She described a total of six acts of sexual intercourse with him over the ensuing weeks. [ 9 ] She stated in the interview that “ Brian ” had a facial deformity which she described as wrinkles which he told her was caused by an allergic reaction to medication.

She described his bedroom as having an en suite bathroom and that his laptop computer was connected to one of two large televisions in his bedroom which was furnished with a king size bed, a chair and two side tables. [ 10 ] After the police became involved she was able to show the police where his residence was located. [ 11 ] In addition, she told the police that his Nexopia name was balls^deep and that his Hotmail user name was zoo- york5000@hotmail.com . [ 12 ] D.P. testified behind a screen but was asked to look at the Accused.

She provided a dock identification of him and made specific reference to recognizing his facial deformity. [ 13 ] Constable Hancey of the RCMP was qualified as an expert in forensic computer analysis. He analyzed D.P. ’ s computer and located two photographs of the Accused. He also was able to locate some fragments of MSN texts using the key word “ zoo-york ” .

[ 14 ] The Accused ’ s HP320 personal laptop was seized and analyzed and two photographs of D.P. were located as well as a copy of the Accused ’ s resume listing his phone number as 780-686-[...]. [ 15 ] An Agreed Statement of Facts was exhibited at trial.

The Accused admitted to using the user name balls^deep and beaverdrill on Nexopia but that the Crown could not prove forensically that the Accused always had exclusive control of these on line profiles. [ 16 ] D.P. used the profile of gymnast100 on Nexopia and exchanged messages via Nexopia with balls^deep and beaverdrill. [ 17 ] During the period December 2008 to January 2009, 780-686-[...] was registered to the Accused whereas D.P. had a cell phone with number 780-221-[...]. [ 18 ] The Accused was arrested on January 27, 2009.

On February 3, 2009 his roommate Jory Brain delivered a Blackberry Pearl to the police which was located by Brain in the Accused ’ s bedroom and which was previously registered to the Accused with number 780-686-[...]. Child Internet Luring Count 1 - s. 172.1(1)(

a) Luring to Facilitate Sexual Assault Count 2 - s. 172.1(1)(

b) Luring to Facilitate Sexual Touching Count 3 - s. 172.1(1)(

c) Luring to Facilitate Abduction [ 19 ] Counts 1, 2 and 3 allege that the Accused contravened ss. 172.1(1) (a), 172.1(1)(

b) and 172.1(1)(

c) of the Criminal Code . [ 20 ] Defence counsel admits that with the exception of the issue of identification, all of the elements of these offences have been proven by the Crown beyond a reasonable doubt. The remaining issue is then reduced to whether the Crown has proven beyond a reasonable doubt that it was the Accused who lured D.P. on line? [ 21 ] It is uncontroverted that there were text messages exchanged between D.P. ’ s number and the number registered to the Accused.

Two photographs of him were found on her computer along with three photos relating to a motorcycle, which photographs were also found on the Accused ’ s Blackberry. [ 22 ] D.P. knew that he used zoo-york as his Nexopia profile, knew his phone number and her photographs were on his computer. [ 23 ] She was able to show the police his residence and provided a detailed description of his bedroom layout and furniture and was able to confirm that he had a roommate. [ 24 ] She arranged on line to meet face to face with “ Brian ” in Gibbons and described his appearance, including his facial deformity which she recognized when she looked at him during her testimony. [ 25 ] Her detailed video statement was recorded on January 22, 2009 closely after the events occurred and when her memory was fresh.

Her version of events was not significantly challenged in cross-examination.

[26] It was put to her in cross-examination that the vehicle seized by the police from the Accused was a grey Dodge pick up truckand not a black Ford pickup truck, but no other significant discrepancies were identified in her evidence. [27] I have concluded that the Crown has met its burden of proving beyond a reasonable doubt that the person she wascorresponding with on line known to her as “Brian” was the Accused. There is a complete absence of evidence as to how they wouldhave met other than through Nexopia.

On this evidence, the only person who could be “Brian” is the Accused. [28] Accordingly, I find the Accused guilty of Counts 1, 2 and 3. The Crown acknowledges that there is significant overlapbetween Counts 1 and 2 and that on the principle enunciated in R. v. Kienapple (SCC), [1975] 1 S.C.R. 729, Count 1should be judicially stayed. Sexual Assault and Sexual Interference Count 4 - s. 271 - Sexual Assault Count 5 - s. 151 - Sexual Interference [29] D. P. graphically described six sexual encounters with the Accused.

It is uncontroverted that she was 12 years old at the timeand thus legally unable to consent to this sexual interaction. She told the Accused she was 12 years old and there is not a shred ofevidence that he believed that she was older than 12. [30] I believe D.P.’s evidence about the sexual encounters with the Accused. There is no evidence to the contrary.

I am satisfiedthat the Crown has proven beyond a reasonable doubt all of the elements of these offences and accordingly, find the Accused guilty ofCounts 4 & 5. [31] The Crown acknowledges that there is significant overlap between Counts 4 & 5 which arise from the same delict and on theKienapple principle Count 4 should be judicially stayed. Count 7 - Abduction [32]

Section 281 of the Criminal Code reads as follows: 281.

Every one who, not being the parent, guardian or person having the lawful care or charge of a person under the age of fourteenyears, unlawfully takes, entices away, conceals, detains, receives or harbours that person with intent to deprive a parent or guardian, orany other person who has the lawful care or charge of that person, of the possession of that person is guilty of an indictable offence andliable to imprisonment for a term not exceeding ten years. [33] I believe D.P.’s evidence that the Accused, on six occasions, drove her either to his residence in Edmonton, a distance of 54km., or to rural areas away from Gibbons during which sexual encounters took place. [34] At the time she was in the care of her father and stepmother.

There is no evidence that they had any knowledge of her havingany contact with the Accused or that they would have permitted this. [35] In R. v. Chartrand (SCC), [1994] 2 S.C.R. 864 and in R. v. Dawson (SCC), [1996] 3S.C.R. 783 the Supreme Court of Canada rejected the argument that in order to sustain a conviction for this type of offence, it isnecessary for the Crown to prove that the child was in the actual custody of a parent or guardian at the time of the abduction.

[ 36 ] It was held that the legislative purpose of the provision must be considered and that the Accused would have the requisite intent if he or she intends to keep the parent from having possession of the child to which he or she is entitled. [ 37 ] On this evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that when the Accused picked up D.P. as she described, it was for the purpose of enticing away, concealing, detaining, receiving or harbouring her from her parents, thus facilitating his ability to have sexual encounters with her. [ 38 ] The Crown has proven all of the elements of this offence beyond a reasonable doubt and accordingly, I find the Accused guilty of Count 7.

B. The Complainant M.J. Count 6 - Child Internet Luring - s. 172.1(1)(

b) Luring to Facilitate Sexual Touching [ 39 ] This Count alleges that the Accused attempted to lure M.J., a person under 16, by means of a computer system between January 1, 2009 and January 19, 2009. [ 40 ] M.J. testified that she was a friend of D.P. and became aware that D.P. had met an individual identified as “ Brian ” on line and was present on several occasions when D.P. got into a vehicle with “ Brian ” . She described his vehicle as being a Dodge Ram pickup truck. [ 41 ] M.J. observed D.P. exchanging text messages with “ Brian ” on line.

Some of his texts were of a sexual nature, including references to having sex with several partners at once. [ 42 ] In order to sustain a conviction for this charge, the Crown must prove beyond a reasonable doubt that luring of M.J. occurred as contrasted to the luring of D.P. which M.J. observed. [ 43 ] M.J. ’ s testimony was vague and I am not satisfied that the Crown has met the burden of proving beyond a reasonable doubt that there was any attempt to lure M.J. separate and apart from the luring of D.P. [ 44 ] Accordingly, I find the Accused not guilty of Count 6. C. The Complainant D.C.

Count 10 - s. 172 - Sexual Assault Count 11 - s. 151 - Sexual Interference [ 45 ] Count 10 alleges that the Accused contrary to s. 271 of the Criminal Code sexually assaulted a complainant identified as D.C. between November 5, 2007 and January [...], 2008. [ 46 ] Count 11 alleges that the Accused, contrary to s. 151 of the Criminal Code , sexually interfered with D.C. between the same dates.

[ 47 ] D.C. was born in January, 1994 and turned 14 in January, 2008. At the time, the age for consent to sexual activity under the Criminal Code was 14 years of age. [ 48 ] D.C. testified that she first met “ Brian ” on line through Nexopia and initially testified that she was 13 or 14 at the time. She identified his Nexopia user name as beaverdrill and that he used two email contacts, rigpig and zoo-york_. [ 49 ] She then testified that she was 13 when she first met “ Brian ” on line and that he knew how old she was.

Some time later she met “ Brian ” face to face and he would pick her up in Redwater where she was living at the time. On occasion they would go to his residence in Edmonton. [ 50 ] She testified that she had sex with “ Brian ” and was 13 when this started which would have been one or two months after they first met face to face. [ 51 ] “ Brian ” took naked photos and videos of her using a Blackberry.

She testified that he was the only individual who made videos of her with his Blackberry. [ 52 ] She confirmed that at the time her hotmail user account was dc [...] @hotmail.com and that her cell number was 780-292-[...]. [ 53 ] She was asked in cross-examination when she first met “ Brian ” and replied that it was close to his birthday, being August [...], when she was 13 years old. [ 54 ] She acknowledged telling Detective Wickens that she first started having sex with “ Brian ” five or six months after meeting him face to face.

She also told Wickens that he knew she was 13. [ 55 ] In re-examination she was asked to identify any milestone which would help pinpoint when she first had sex with “ Brian ” and replied “ one or two weeks before his birthday ” . [ 56 ] She also testified that she first had sex with him the first day they met face to face, having met him on line two to three weeks before their first meeting. [ 57 ] As noted, the Accused by way of an Agreed Statement of Facts admitted that he had two Nexopia profiles, balls^deep and beaverdrill. [ 58 ] At trial the Crown tendered a log of messages between D.C. and beaverdrill for the period July 2007 to October 2007. [ 59 ] The forensic analysis of the Accused ’ s HP320 personal laptop contained photographs of D.C. and as well, her photographs were found on his Sony laptop and his HP100 work laptop.

a) The Issue of Identification [ 60 ] The first issue which arises is whether the Crown has proven beyond a reasonable doubt that “ Brian ” is the Accused?

[ 61 ] I am satisfied that the Crown has satisfied this burden of proof. Photographs of D.C. were located on a number of his computers. Her hotmail user name was located on the work computer as well as the HP320. D.C. was exchanging messages with beaverdrill. There is a complete absence of evidence as to how they would have met other than through Nexopia as she described. [ 62 ] The only logical conclusion which can be reached on this evidence is that “ Brian ” is the Accused. There is no evidence to the contrary.

b) Has the Crown proven beyond a reasonable doubt that the Accused had sexual relations with D.C. prior to her 14 th birthday and specifically between November 5, 2007 and January [...], 2008? [ 63 ] When one considers the totality of the evidence, I am satisfied that the Crown has proven that D.C. had sexual relations with the Accused prior to her 14 th birthday. I believe D.C. and find as a fact that they first had sex on the day they first met in person which was close to his birthday, being August [...], 2007. [ 64 ] In the result, I find the Accused guilty of counts 10 & 11.

These offences arise from the same delict and on the Kienapple principle, Count 10 is judicially stayed. Count 8 - s. 163.1(2) Making Child Pornography Count 9 - s. 169.1(4) Possessing Child Pornography [ 65 ] Count 8 alleges that the Accused between the 5 th day of November 2007 and the 20 th day of March 2008 at or near Edmonton did make child pornography contrary to s. 163.1(2) of the Criminal Code .

Count 9 alleges that between the same dates and at the same location possessed child pornography of D.C. contrary to s. 163.1(4) of the Criminal Code . [ 66 ] Forensic analysis of the Accused ’ s HP320 personal laptop determined that there were some photographs of D.C. which appear to have been taken after she was 14 years of age. The Sony Vaio laptop had photographs of D.C. in files created after her 14 th birthday. The work laptop computer contained child pornography which will be discussed under Count 12. [ 67 ] A Blackberry Pearl model 8130 found in the Accused ’ s residence by his room mate Mr.

Brain and turned over to the police contained four child pornographic movies and 25 child pornographic photographs of D.C. [ 68 ] Defence counsel acknowledges that child pornography videos and photographs of D.C. were found on the Accused ’ s Blackberry Pearl, but argues that they were taken with her consent and thus the private use defence as defined by the Supreme Court of Canada in R. v.

Sharpe 2001 SCC 2 , applies. [ 69 ] In Sharpe the court accepted that the definition of child pornography in s. 163.1 of the Criminal Code , in order to be compliant with the Charter , must have read in the right of a person to possess visual recordings created by or depicting that person but only where these recordings do not depict unlawful sexual activity, are held for private use and were created with the consent of the person depicted. [ 70 ] In her testimony D.C. readily acknowledged that the videos and photographs of her were made with her consent and that she was a willing participant.

As noted, at the time, the age of sexual consent was 14.

[ 71 ] In the result, the private use defence can only apply to videos and photographs made on or after her 14 th birthday, being January, 2008. It has no application prior to that date. [ 72 ] Constable Hancey ’ s forensic analysis determined that 20 of the 25 child pornographic photographs of D.C. contained metadata indicating that the photos were taken with a Blackberry Pearl model 8130 between January 13, 2008 and March 20, 2008.

There are 15 more child pornography photographs of an unidentified person whose age is unknown. [ 73 ] Constable Hancey testified that to the best of his forensic ability the dates and times he observed on the Blackberry and put in his reports are correct, but he could not be 100% sure. [ 74 ] He testified to the following: 1. The Blackberry was functioning properly when he examined it. 2. The Blackberry is designed to enable the user to record dates when images are recorded. 3. Dates will be automatically recorded unless the settings for this function are manually turned off. 4.

He analyzed the Blackberry in an electronically secure room such that he can be certain that when he examined it, its electronic status was not changed by turning it on and analyzing it. 5. When he analyzed the Blackberry the setting for the automatic recording of dates was on. [ 75 ] I have already concluded that the Accused had a sexual relationship with D.C. which started around his birthday on August [...], 2007.

She turned 14 in January, 2008 and a relationship continued thereafter. [ 76 ] She testified that he was the only person who took naked photos of her with his Blackberry. [ 77 ] The metadata recovered from the Blackberry indicated that images were recorded between January 13, 2008 and March 20, 2008 which falls within this known time period which is supportive but not determinative of the accuracy of these dates. [ 78 ] Considering the totality of the evidence, I am satisfied that there is a compelling logical inference that some of the child pornography images on the Blackberry were created and possessed by the Accused prior to January, 2008.

There is no evidence that the images were not recorded between those dates or that they could not have been recorded. [ 79 ] I find that the Crown has proven beyond a reasonable doubt that prior to D.C. ’ s 14 th birthday the Accused had taken pictures of her, which were child pornography, in contravention of s. 163.1(2) and was in possession of same in contravention of s. 163.1(4) . [ 80 ] Accordingly, I find the Accused guilty of Counts 8 & 9.

Count 12 - s. 163.1(4) - Possession of Child Pornography [ 81 ] Count 12 alleges that the Accused, on or about September 15, 2008, at or near Edson was in possession of child pornography. No specific complainant is identified. [ 82 ] In the Agreed Statement of Facts, it is agreed that on September 15, 2008 the RCMP seized an HP Pavilion laptop owned by the Accused. This was referred to as the “ work ” laptop.

[ 83 ] The registered owner is “ Beaver ” . There were several user accounts including “ downforwhatever ” . [ 84 ] There were 276 pictures and 66 movies of child pornography found on this computer. Fourteen of the child pornographic photos were of D.C. [ 85 ] Many of the child pornographic pictures were found in the Limewire saved folder in the “ downforwhatever ” user account.

This Window ’ s user account was password protected with the password “ playswithgirls ” . [ 86 ] This password is the same as the Window ’ s user account on the Sony Vaio laptop also owned by the Accused and seized from him. [ 87 ] Forensic analysis revealed a series of files referring to pre-teen pornography. [ 88 ] The user account “ downforwhatever ” had a resume in the root of my documents called “ Brian ’ s Resume ” WPS for “ Brian ” Cockell at [...]-24 Street NW, Edmonton, Alberta, phone number 780-686-[...]. [ 89 ] There was also a Blackberry backup file found in the same location called loaderback(2008-05-23 ipd). [ 90 ] Forensic analysis revealed that this appeared to be a backup of the Blackberry Pearl with PIN 301CAICF which matches the PIN of the Blackberry Pearl found in the residence of the Accused.

Forensic analysis of the Blackberry Pearl revealed photographs of D.C. [ 91 ] The work computer included file folders including, zoo-york5000@hotmail.com and D.C.482@hotmail.com under the “ downforwhatever ” Window ’ s user account. [ 92 ] Limewire version 4 was installed on this computer. Limewire is a peer to peer client program which allows for sharing on line of pictures and videos.

Many of the child pornography pictures and movies on this laptop were found in the Limewire saved folder. [ 93 ] Forensic analysis revealed that the user “ downforwhatever ” was sharing on line the child pornographic pictures and movies. [ 94 ] The default login on the Windows live messenger was zoo-york5000@hotmail.com . [ 95 ] Defence counsel does not dispute that this laptop contained child pornography but argues that the Crown has failed to prove beyond a reasonable doubt that the Accused was aware that this child pornography was on his laptop and thus cannot be convicted of possession of same. [ 96 ] For the purpose of analyzing Count 12, I am ignoring the images of D.C. which may have originated after she turned 14 thus there is no need to consider the application of the private user defence in R. v.

Sharpe . [ 97 ] The balance of the child pornography on the laptop of unidentified children could not be possessed legally. [ 98 ] As noted, the Accused owned this laptop and had a substantial connection to the operation of it through the user account

“downforwhatever”. Not only was the password “playswithgirls” the same as his Sony Vaio laptop but as well his resume was in thesaved folder as was the backup for the Blackberry Pearl. [99] In addition, the “downforwhatever” user account had folders for the Accused’s hotmail user profile zoo-york as well the userprofile for D.C. [100] The user of “downforwhatever” was sharing child pornography pictures and photographs through Limewire and the defaultlogin for Windows live messenger was “zoo-york” associated with the Accused. [101] Section 4(3) of the Criminal Code defines possession as follows:

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of anotherperson; [102] The Crown is not required to prove that the Accused had exclusive possession of the laptop. In R. v. Chalk 2007 ONCA 815,at para. 19 the court confirmed that the Crown must prove that the accused had a measure of control: 19 Knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge had ameasure of control over the item in issue.

Control refers to power or authority over the item whether exercised or not: R. v. Mohamad(2004), (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.) at paras. 60-61. [103] In R. v. Daniels 2004 NLCA 73, at para. 12 it was observed that it is not necessary for the Crown to prove that the accusedviewed the material. There is no evidence of accidental or inadvertent downloading. [104] It is trite law that possession may be actual or constructive. [105] In R. v.

Missions 2005 NSCA 82, the Nova Scotia Court of Appeal dealt with the issue of whether the trial judge erred ininferring possession from the evidence before him. [106] The appeal was dismissed and the court’s reasoning at para. 21 is instructive: 21 The question thus becomes, was it unreasonable, based on the evidence presented, for the trial judge to have concluded thatsomeone could not have unintentionally acquired 64 images of child pornography and stored them in four separate places? The trialjudge, in my view, did not misconstrue the evidence of the expert.

He accepted the possibility of accidental downloading. It was notnecessary to have further evidence of the probability of more than one accidental acquisition. That is a matter of common sense. Thenormal inference that one intends the natural consequences of one’s actions is applicable to computer usage just as it is to any otherhuman activity, especially in light of the lack of any evidence to rebut the inference. [107] In this case the issue is reduced to whether, on the evidence before me, it is possible to draw an inference other than that theAccused was in possession of the work laptop?

I have concluded that the only logical inference from the evidence, including the largevolume of child pornography found on this laptop, is that the Accused was aware that there was child pornography on his work laptop.

[ 108 ] Given all of the foregoing, I am satisfied that the Crown has met the burden of proving beyond a reasonable doubt that the Accused was in possession of child pornography on this laptop and accordingly, find him guilty of Count 12. [ 109 ] In

summary, convictions will be recorded for Counts 2, 3, 5, 7, 8, 9, 11 & 12. Counts 1, 4 & 10 are judicially stayed. The Accused is acquitted on Count 6. Heard from February 13 - 17, 2012. Dated at the City of Edmonton, Alberta this 8 th day of March, 2012. R. Paul Belzil J.C.Q.B.A. Appearances: Craig Krieger Special Prosecutions Branch for the Crown Shawn Beaver Beaver Leebody Frank & Simic for the Accused