R. v. Prince, 2017 BCSC 2642

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Prince, 2017 BCSC 2642 Date: 20171204 Docket: 39711-2 Registry: Penticton Regina v. Jesse Aaron Prince Corrected Judgment: The text of the judgment was corrected at Appendix “A” on November 21, 2018 Before: The Honourable Madam Justice Ker Oral Reasons for Judgment Counsel for the Crown: N. Devji Counsel for the Accused: J.H. Pennington Place and Date of Trial: Penticton, B.C. October 30, 31 & November 1, 2, 3, 2017 Place and Date of Judgment: Penticton, B.C. December 4, 2017 [ 1 ] THE COURT: These are oral reasons for judgment.

As such, they are subject to editing for grammar and style. The result will not change. Introduction [ 2 ] In July 2010, Det. Sgt. Parisien of the Saskatoon Police Service undertook an online investigation on the GigaTribe network, a peer-to-peer file sharing system that only permits file sharing between "friends". The purpose of Det. Sgt. Parisien's investigation was to locate people who were sharing images that satisfied the definition of child pornography as contained in s. 163.1 of the Criminal Code of Canada (the " Code "). [ 3 ] On July 19, 2010, Det. Sgt.

Parisien's online personality engaged in an online chat with an individual who had an online identity of "Stonerguy". Between 2:45 p.m. and 3:42 p.m., Stonerguy and Det. Sgt. Parisien's online personality discussed child pornography. Stonerguy provided Det. Sgt. Parisien's online personality with his password to his folders. With Stonerguy's password, Det. Sgt. Parisien was able to download 15 files (10 images and five videos) from Stonerguy's password protected folder. All five videos met the definition of child pornography. [ 4 ] Through the use of publicly available software, Det. Sgt.

Parisien was able to determine Stonerguy's IP address and also geo-locate the IP address in the Okanagan area. As a result of this investigation, Det. Sgt. Parisien prepared an investigative report that he forwarded to the B.C. Integrated Child Exploitation ("ICE") Team outlining that he had identified an IP address in the Okanagan where a user was in possession of child pornography. [ 5 ] As a result of further investigation by members of ICE, the IP address was located at a residence on Green Mountain Road in the Penticton area. After reviewing the images that Det. Sgt. Parisien downloaded from Stonerguy, Cst.

Tousignant determined that six of the 15 shared and downloaded files received from Stonerguy constituted child pornography as defined by s. 163.1 of the Code . [ 6 ] As a result of her investigation, Cst. Tousignant obtained a search warrant for the residence in the Penticton area located on Green Mountain Road that was affiliated with the IP address. The search warrant was executed on September 28, 2010, at the home of Leslie Prince, the accused's father. Five individuals were at the residence when the search warrant was executed. Three of those individuals, including the accused, lived there.

The accused was the only person arrested. [ 7 ] A number of devices were seized from the residence during the execution of the search warrant. They were submitted for forensic technological examination. Two devices, a black HP Pavilion desktop computer (the "desktop computer"), and a Western Digital 640 gigabyte hard drive (the "external hard drive"), both found in the accused's bedroom, contained images of child pornography. [ 8 ] As a result of the investigation, Jesse Aaron Prince, who I will call the accused, stands charged with four counts on Indictment 39711-2:

Count 1Jesse Aaron PRINCE, between the 28th day of October, 2009 and the 29th day of September, 2010, inclusive, at or near Penticton, in theProvince of British Columbia, did possess child pornography, to wit: images and video contrary to

Section 163.1(4) of the CriminalCode. Count 2Jesse Aaron PRINCE, between the 28th day of October, 2009 and the 29th day of September, 2010, inclusive, at or near Penticton, in theProvince of British Columbia, did access child pornography, to wit: images and video, contrary to

Section 163.1(4.1) of the CriminalCode. . . . Count 5Jesse Aaron PRINCE, between the 18th day of July, 2010 and the 20th day of July, 2010, inclusive, at or near Penticton, in the Provinceof British Columbia, did have in his possession for the purpose of transmission, making available or distribution, child pornography, towit: images and videos, contrary to

Section 163.1(3) of the Criminal Code. Count 6Jesse Aaron PRINCE, between the 18th day of July, 2010 and the 20th day of July, 2010, inclusive, at or near Penticton, in the Provinceof British Columbia, did transmit, make available or distribute child pornography, to wit: images and video, contrary to

Section 163.1(3)of the Criminal Code. [9] On November 4, 2017, at the conclusion of the trial, the Crown directed a stay of proceedings on Counts 3 and 4 of theindictment. [10] The only issue in this trial is who was responsible for downloading the child pornography and whether the Crown has proven,beyond a reasonable doubt, that Mr. Prince was the individual who downloaded the materials and therefore had possession of them. Toexpedite matters, pursuant to s. 655 of the Code, counsel for Mr. Prince signed formal admissions of fact for the purpose of dispensingwith the proof thereof.

The admissions of fact were marked Ex. #1 in the trial and are annexed as Appendix A to these reasons. [11] Three witnesses were called in this trial: Cpl. Tousignant who conducted the ICE investigation and obtained the search warrant;Sgt. Lorena Rostie, an expert in computer forensic technical analysis, who examined the devices seized from the Prince residence andfound child pornography on the desktop computer and the external hard drive; and the accused, Jesse Aaron Prince. [12] As Mr. Prince testified in his own defence, the principles from R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 applyto the assessment of his evidence. I will deal with that when I examine his evidence. [13] Before embarking upon a review of the salient features of the evidence addressing the only issue in this trial, there is apreliminary issue to address that relates to the ownership of the computer and the external hard drive. Preliminary issue [14] The admissions of fact in Ex. #1 contain an admission that Mr. Prince owned the desktop computer and external hard drive: 31. Cst. Hryciuk identified and Cst.

Driscoll seized, the following items belonging to Jesse Prince from Jesse Prince's room: a. HP Desktop Pavillion Slimline computer (exhibit 2) b. A Western External Hard Drive 640 GB (exhibit 3) c. A Duracell 16 GB USB Drive (exhibit 4) 32. Sergeant Collins conducted a forensic preview of Jesse Prince's HP Desktop Pavillion Slimline computer (exhibit 2) and WesternExternal Hard Drive (exhibit 3). Child pornography was found on both devices including a video entitled Cbaby abuse-!!new(pthc)paechai.avi which appeared to be the video downloaded by Detective Sergeant Parisien's online personality.

Sergeant Collins also founddeleted remnants of Gigatribe installation on Jesse Prince's computer along with the user name "Stonerguy". [15] The admissions made by Mr. Prince's counsel alleviated the Crown from calling, presumably, Mr. Prince's father and nephew,the two other residents of the home, who would have testified as to the ownership of the two devices; i.e., that they belonged to theaccused, Jesse Prince.

By making the admission of ownership, counsel could avoid a likely problematic feature of the evidence of theaccused's father and nephew; that is, a denial that they downloaded the child pornography found on the two devices. [16] When the accused testified, he denied owning the desktop computer and the external hard drive found in his bedroom. It wasthe evidence of Mr.

Prince that the computer and the external hard drive both belonged to his father and was common property used byall the residents of the home and others when they were visiting. [17] At the conclusion of the evidence on November 3, 2017, counsel for Mr. Prince indicated he wished to make an application towithdraw paras. 31 and 32 of the admissions.

The Crown indicated it was opposed to the application and, further, that if the applicationwas granted, the Crown would seek an adjournment to find and re-interview the accused's father and nephew and call evidence fromthem on the issue of ownership of the devices. [18] The Court adjourned for the day for counsel to consider and develop their positions, and for Mr. Pennington to take instructionsfrom his client. On Friday, November 4, 2017, at the commencement of the proceedings, Mr. Pennington advised the Court that, based

on his client's instructions, he was not to pursue the application and he was withdrawing his application to withdraw the admissions atparas. 31 and 32 of Ex. #1. He alluded to the admissions as being a mistake on his part, but no evidence was adduced on this point. [19] Mr. Pennington provided the decision of the Ontario Court of Appeal in R. v. Coburn (1982), (ON CA), 66C.C.C. (2d) 463, to demonstrate that agreed statements of fact contradicted by viva voce evidence can be problematic. [20] In Coburn, an agreed statement of facts "prepared hastily" was filed by the parties on consent.

The trial judge ruled that whilethe agreed statement of facts carried great weight, evidence could be led to explain or contradict it. Ultimately, on a material point, thetrial court accepted the text of the statement of facts and rejected the accused's testimony to the contrary. On appeal, the court stated: 13 This case emphasizes that although an Agreed Statements of Facts are often useful, they should only be used where the facts areclearly agreed upon.

When it became apparent that this was not the case, and that there was a conflict between the appellant’s evidenceon the one hand, and the Agreed Statement of Facts on the other, the trial judge should have required the Crown to call evidence on thepoints in issue. The trial judge, however, attempted to perform an impossible task, namely to decide between what was set forth in theAgreed Statement of Facts and the viva voce evidence of the appellant.

The trial judge in effect set out to determine the question ofcredibility of the appellant without hearing Inspector Yorkston and weighing in turn his credibility. [21] It may be that where there is a conflict in the evidence between the viva voce evidence of a witness, in Coburn it was theaccused's evidence, and the content of an informal evidentiary agreed statement of fact, the trial judge may well require the Crown tocall evidence on the points in issue. [22] As the learned authors of C. Hill, D.M. Tanovich & L.P.

Strezos, McWilliam's Canadian Criminal Evidence, 5th ed. (Toronto:Canada Law Book, 2013) (loose-leaf, updated 2017), §25.30, note, an informal or evidentiary admission may not be conclusive. It maybe otherwise contradicted or explained in the evidence at trial. Unlike formal admissions of fact, an informal admission "is merely anitem of evidence" available for "self-contradiction" or rebuttal. [23] McWilliams goes on to note in that same

section that: The distinction between the solemn or formal admission and an evidentiary or informal admission is 'a radical one', as the former 'morestringent' form of admission admits of no contradiction, while the latter genre of admission, for example agreeing what a witness, ifpresent, would testify to without any agreement, that the tenor of the desired testimony is true, leaves it open to impeach or contradict thecredibility of the absent witness by other evidence. [24] In this case, however, Ex. #1 is not part of an informal evidentiary agreed statement of facts. Rather, it is a formal statutoryadmission of facts made pursuant to s. 655 of the Code. That

section provides: 655 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purposeof dispensing with proof thereof. [25] As the editors of McWilliams note at §25.30: A formal or judicial admission, agreement that the admitted fact is true, cannot be contradicted by the accused once made without leaveof the court to withdraw the admission. “Judicial admissions are not evidence at all... they are formal concessions... or stipulations by aparty or counsel that have the effect of withdrawing the fact from issue and dispensing wholly with the need for proof of the fact.” Inother words, a formal admission amounts to conclusive proof of the admitted fact carrying with it a “prohibition of any further dispute ofthe fact... and of any use of evidence to disprove or contradict it”.

Apart from evidence disputing the admitted fact, given the conclusive nature of a formal admission, the party benefiting from theadmission and therefore relief from proving the admitted fact is generally disentitled from leading more evidence to establish theadmitted fact. [26] Here the formal admission made pursuant to s. 655 of the Code includes an admission of ownership of the computer and theexternal hard drive by the accused. Mr. Prince cannot contradict this admission without leave of the court to withdraw this admission.Mr. Prince abandoned his application to withdraw the admission.

Once an admission is tendered and accepted by the court, as it washere, it is an integral part of the record.

Unless altered by mutual consent, an admission voluntarily made, by or with the advice ofcounsel, is not easily disturbed. [27] As the editors of McWilliams note at §25.60: Although a trial judge has a wide discretion to relieve a party of the strictures of an express factual admission and to require the partybenefiting from the admitted fact to call evidence on the matter, regrets about a tactical decision to make an admission, a strategicdecision otherwise falling within the range of reasonably competent counsel decision making will rarely result in an admission beingbacked out of the record of the proceeding.

In other words, a factual admission, even if ill advised or improvident, cannot be simplyretracted at the will of a party. [28] In this case, the application to withdraw the admission of ownership at paras. 31 and 32 of the formal admissions found in Ex.#1 was itself withdrawn on the instructions of Mr. Prince. Accordingly, as a formal admission, it admits of no contradiction.

Based onthis formal admission, which I have accepted and for which no application to withdraw it has been made (the application to withdrawthese admissions having been withdrawn), the ownership of the desktop computer and the external hard drive is conclusive proof that theaccused, Jesse Prince, owns those two devices. The evidence

[ 29 ] As noted earlier, three witnesses were called in this trial. In addition, a number of exhibits were filed, including documents supporting aspects of the formal admissions in Ex. #1 and several forensic technical examination reports prepared by Sgt. Rostie, the technical examiner, all contained in Ex. #2. [ 30 ] As Cpl. Tousignant's evidence is uncontroversial and served mainly to provide the narrative as to how the investigation progressed after Det. Sgt. Parisien's report was received by ICE until the arrest of Mr. Prince, I do not propose to review it.

No issue was taken with her evidence and it does not address the only issue in this case – who downloaded the child pornography found on Mr. Prince's computer and external hard drive, and therefore who possessed it. [ 31 ] The issue of who downloaded the child pornography is addressed both in the opinion evidence of Sgt. Rostie, as contained in her technical reports found in Ex. #2 and in her viva voce evidence, which included a vigorous cross-examination, and the evidence of Mr. Prince. Mr.

Prince denied ownership of the computer and the external hard drive and denied being responsible for downloading the child pornography found on those devices. He denied he was Stonerguy and denied being involved in the online chat with Det. Sgt. Parisien's online personality on July 19, 2010, where child pornography was provided to Det. Sgt. Parisien by Stonerguy. [ 32 ] He denied providing the images to Det. Sgt. Parisien that were downloaded from Stonerguy's GigaTribe account on July 19, 2010. Mr.

Prince's denials of downloading child pornography onto the devices in question and his denial of exchanging child pornography with Det. Sgt. Parisien's online personality are more properly assessed in the context of Sgt. Rostie's evidence. Accordingly, I will review the salient features of her evidence and opinion before turning to an examination of Mr. Prince's evidence. [ 33 ] Sergeant Lorena Rostie was called as an expert witness and qualified as such to give an opinion in the areas of computer forensics, including the preservation, extraction, identification, analysis, and

interpretation of digital evidence recovered from an electronic storage media. Digital evidence includes, but is not limited to video, photograph, audio, and data files. Electronic storage media includes, but is not limited to, compact discs (CDs), digital video discs (DVDs), computer hard drives, digital cameras, and digital video recorders, mobile phones, and other mobile communication devices. As well, she was qualified as an expert in, and capable of giving opinion evidence about, (

i) the general functionality of operating systems for computers and mobile devices, including installation of these operating systems and the effect of this process on file systems; (ii) networks including the internet; (iii) file systems, and file formats; and (iv) software used to download and display and print video, photograph, audio, and data files, including peer-to-peer file-sharing software. [ 34 ] As mentioned previously, Ex. #2 contains a number of technical examination reports completed by Sgt. Rostie following her examination of the devices seized from Mr.

Prince's bedroom. [ 35 ] I should note that a total of 17 items or devices were seized pursuant to the execution of the search warrant at the home of the accused's father, which was also the accused's residence. Of the 17 items submitted for analysis to the Vancouver Integrated Technical Crime Unit (VITCU), now known as the "E" Division Tech Crime Group, Sgt. Rostie's examination of all the items seized found child pornography on only two items, the accused's desktop computer and the external hard drive, both seized from his bedroom in the Green Mountain Road residence.

The other 15 items were determined to be of no evidentiary value. [ 36 ] I will refer briefly to Sgt. Rostie's evidence and report that establish that, as a result of her forensic technical examination of the two devices in issue, 141 images of child pornography were retrieved from the desktop computer and 189 images and two videos of child pornography were located on the external hard drive. There is no issue that these images constitute child pornography (Ex. #1, para. 33). [ 37 ] Based on Sgt.

Rostie's examination of all the available information from the forensic technical examinations of the two devices, it was her opinion that the accused was the primary user of the computer and external hard drive. On the computer, she found no evidence of other users. On the hard drive, she found evidence of only one other user, a folder belonging to Kayla Archambault. However, her use of the external hard drive was restricted to one day, January 7, 2010. [ 38 ] Sergeant Rostie's opinion was based upon the totality of the digital information extracted from the two devices during the forensic technical examination.

Among the digital indicators that supported Sgt. Rostie's opinion that the accused was the primary user of these two devices were the following:

a) a Facebook account in the name of Jesse Prince;

b) an MSN Messenger account with similar ties;

c) a folder entitled "Jesse's court shit!!!";

d) various pictures of Jesse Prince, including from his involvement with a rap group known as the Street Kingz;

e) a Yahoo Messenger account with one user account "joco2222", listed in bookmarks or the favourites links of the desktop computer with at least one user tile image from this identity also affiliated with another identity. As well, one of the joco2222 user tile images was also found on the external hard drive;

f) text documents containing saved chat logs or conversations between the accused and other individuals;

g) on the external hard drive, in one of the recycle bin folders containing child pornography images, were also photographs of the accused;

h) on the external hard drive, there were personal documents, including the accused's résumé;

i) analysis of the desktop computer hard drive revealed artefacts for GigaTribe indicative that GigaTribe, a peer-to-peer file-sharing program, had previously been installed on it at one point in time;

j) analysis of the desktop computer hard drive also revealed artefacts related to the user Stonerguy in the page file and hibernation file of the operating system, as well as in the unallocated space portion of the hard drive;

k) the two previous digital indicator artefacts confirmed for Sgt. Rostie that GigaTribe had been installed on the desktop computer and that the user account Stonerguy was associated to the GigaTribe install;

l) references to the file that Stonerguy referred to in his chat with Det. Sgt. Parisien's online personality with the name of "cbabyabuse-!!new(pthc)paechai.avi", which I will refer to as the "cbaby abuse file" was located in the page file of the desktop computer, indicating that the file was at least accessed from this computer;

m) a disk signature for the external hard drive was found in the Windows registry of the desktop computer, indicating that the external hard drive was connected to the desktop computer at a point in time;

n) a master file table entry on the external hard drive contained the cbaby abuse file that Stonerguy referred to in his online chat with Det. Sgt. Parisien on July 19, 2010. This information told Sgt. Rostie that the cbaby abuse file had existed on the external hard drive at a point in time with an entry for the created date of March 18, 2010. The file itself had been overwritten;

o) one of the security identifiers located in the recycle bin on the external hard drive included the security identifier for the desktop computer and the user account "Moi", indicating that the external hard drive was connected to the desktop computer and that items were deleted from the external hard drive while the user was logged onto the desktop computer using the Moi account;

p) the Moi account on the desktop computer is tied to the operating system installed on the desktop computer on September 3, 2010. The Microsoft Windows 7 registration information is in the name "Moi". Examination of the file systems of the desktop computer indicated a single-user profile account in the name of "Moi". The account was password protected and contained artefacts that identified the accused as the primary user;

q) the most recently created and used folders on the external hard drive included folders entitled "Jesse's court shit!!!" and "Jesse's folder". These folders were created on February 25, 2009, at a time well before the accused moved into his father's residence. In addition, Sgt. Rostie located a résumé for Jesse Prince and a group photo, including the accused, both created and last accessed on May 29, 2010, again at a time before the accused moved to his father's residence.

Sergeant Rostie also located a saved chat log conversation about the accused moving from town, where he lived with his mother, to the reserve where he moved in with his father, also created and last accessed on May 29, 2010, again at a time prior to the accused moving to his father's residence on Green Mountain Road;

r) the Facebook account on the desktop computer was for Jesse Aaron. The accused's middle name is Aaron and he is listed as Jesse Aaron in one of his Street Kingz’s posters; and

s) the user tile images for the MSN Messenger account for BigNasty_84@hotmail.com had two photographs of the accused. [ 39 ] Sergeant Rostie explained that the Facebook account file setting for Jesse Aaron was such that the user was kept logged in and did not have to keep entering a password. Accordingly, anyone able to log into the computer's Moi account had full access to the Jesse Aaron Facebook account without need for a password. [ 40 ] Significantly, the only evidence of another user of the external hard drive was one folder named c:\kyl.

This folder was created, last accessed, and last written on January 7, 2010. It contained items related to a Kayla Archambault. There was no evidence of materials related to any other users on either the external hard drive or the desktop computer. [ 41 ] A supplemental report was prepared by Sgt. Rostie in January 2016. This time, Sgt. Rostie conducted a search of both devices to look for file names that matched those seen by Det. Sgt.

Parisien as reported in screen captures in his investigative report to ICE. [ 42 ] She located two files seen by the UC operator linked to the GigaTribe downloads, as well as other file names consistent with child pornography materials. Sergeant Rostie also located a full path in the page file that showed the GigaTribe user named Stonerguy. Further examination of the external hard drive by Sgt. Rostie revealed a number of master file table entries that matched file names seen by Det. Sgt.

Parisien as reported in his GigaTribe screen captures. [ 43 ] The master file table is the method by which the Windows operating system keeps track of all files on the hard drive. An examination of the master file table entries determined that the matches to the file names seen by Det. Sgt. Parisien were created in March and April 2010. Sergeant Rostie was of the opinion that this indicated when the files were placed on the external hard drive. [ 44 ] The cbaby abuse file referred to in the chat conversation between Det. Sgt.

Parisien and Stonerguy was created, according to the master file table entry for the file, on March 18, 2010, again a time well in advance of the accused's move to his father's residence. [ 45 ] In addition, Sgt. Rostie's analysis revealed all of the last master file table modification dates were August 1, 2010, at 12:12 hours, and that this was likely when the files were deleted from the hard drive. Further analysis of the external hard drive specific to activity on August 1, 2010, revealed that four folders were deleted from the external hard drive on August 1, 2010, at 12:12 hours.

Although the four folders were deleted, they remained in the recycle bin, which had not been further deleted or emptied. Two folders, "loco" and "New Folder" contained images that met the definition of child pornography as defined in the Criminal Code . [ 46 ] Additionally, the loco folder also contained two photographs of the accused. As well, photographs of the accused and family were copied to the external hard drive and into a folder named "photos". This was done at 11:47 hours on August 1, 2010, and a video entitled "INTRO DEMO.wmv" was copied to the external hard drive at 11:49 hours on August 1, 2010.

The video relates to the Street Kingz, the accused's band. Both these steps were done minutes before the child pornography images were deleted from the external hard drive. [ 47 ] Sergeant Rostie located in the master file table entries on the external hard drive, nine different file names seen by Det. Sgt.

Parisien using the GigaTribe folder as outlined in Ex. #1, Tab 5 at pages 7 to 8. Because a new operating system had been installed on the desktop computer on September 3, 2010, the majority of the GigaTribe artefacts were deleted. Nevertheless, sufficient artefacts remained to confirm that GigaTribe had been installed on the desktop computer and that the user account, Stonerguy, was associated to the GigaTribe install. [ 48 ] Sergeant Rostie was extensively cross-examined, but for the most

part confirmed the investigative steps undertaken that led to her forensic analysis of the two devices. Sergeant Rostie's opinion that the accused, Jesse Prince, was the primary user of the desktop computer was based on the pictures and data related to Jesse Prince found on the computer and the lack of evidence of any other users. Sergeant Rostie conceded that she could not exclude other residents as users of the computer, if they used the same passwords, did not save any other information, and did not access websites. Sergeant Rostie conceded that the external hard drive was not password protected.

She also conceded that it was theoretically possible for the accused to be on Facebook doing something, walk away from the computer, and then someone else use the computer, assuming Mr. Prince's identity and accessing anything on the internet, provided the computer did not lock. [ 49 ] Sergeant Rostie conceded that it was theoretically possible that the accused did not have the password for the computer, but found the suggestion to be odd, as it would require someone else to direct him to log in. And, while conceding it was possible others had the password for the computer, the only way Sgt.

Rostie could not eliminate other residents of the home as users of the computer was if they had the password, used the computer, but did not save any documents, photographs, or log into the computer. Essentially, it might be possible that another person used the computer if they did so without any identifying information. [ 50 ] Sergeant Rostie agreed that the only way she could connect the accused to the Stonerguy account and the joco2222 Yahoo identity was the fact that Mr. Prince had a number of other personal identifying items such as chat logs, a résumé, and photographs of himself on the computer.

However, the Big Nasty user account had two photographs of the accused for user tile images. [ 51 ] I turn now to the evidence of the accused. [ 52 ] Mr. Prince testified that prior to moving to his father's residence on Green Mountain Road on the Penticton Indian Reserve in June 2010, he lived with his mother near Skaha Beach in Penticton. Mr. Prince has a Grade 10 education, is a musician writing many of his own lyrics, and for a period of time was a member of the Street Kingz, a local rap hip-hop group. He performed with the group mainly in the Okanagan, but also in Chilliwack.

He left the group sometime in 2010 because there was a lot of fighting and disagreement on how the group should be doing things. Additionally, partying, drinking, and doing drugs was becoming a problem. In early 2010, he was still performing with the Street Kingz. [ 53 ] Mr. Prince testified that he had a laptop computer, but shortly after he moved to his father's home it was broken. Mr. Prince testified that the desktop computer and the external hard drive belonged to his father and that he was permitted to use the two devices.

However, in light of the formal admissions of ownership of the computer and the external hard drive, the accused's evidence on this point is rejected, as no application to withdraw this formal admission was made (the application to withdraw the admissions in issue having been withdrawn). [ 54 ] Mr. Prince testified that the desktop computer was shared by all the residents. He explained that it was usually on a table in the living room area, but a few days prior to his arrest he was playing video games on it that bothered his father, who was watching TV in the same area.

As a consequence, he moved the desktop computer tower to his bedroom to continue playing video games. [ 55 ] Mr. Prince testified he had nothing to do with the installation of the new operating system on the desktop computer - that was something his father did. With respect, however, that makes little sense in light of the admission of ownership of the computer. Mr. Prince denied that the Yahoo Messenger account, joco2222, on his computer was his, but admitted that the Big Nasty MSN Messenger account was his. However, he denied ownership of the other email accounts found on his computer.

He denied accessing, viewing, or downloading child pornography onto either the desktop computer or the external hard drive, had never heard of GigaTribe, and testified he had no idea who Stonerguy was, it was not his handle. [ 56 ] Mr. Prince did acknowledge that the résumé and chat log conversations found on the external hard drive were his materials, as were photographs of him. He also acknowledged putting together the PowerPoint presentation about his Uncle Billy Lizotte found on the external hard drive, although he could not recall how it got onto the hard drive. [ 57 ] Mr.

Prince was vigorously cross-examined by the Crown and, in my view, his evidence did not withstand that test. He contradicted himself, such that his evidence was internally inconsistent, and he was contradicted by external forensic technical evidence from the two devices examined by Sgt. Rostie. [ 58 ] As Mr.

Prince testified and his evidence was called to address the only live issue in the case - who downloaded and therefore accessed and possessed the child pornography - the wisdom of W.(D.) applies to the assessment of his evidence and his credibility, which is a very live issue. [ 59 ] The test to be applied to the assessment of Mr.

Prince's evidence has been formulated as follows: 1) if I believe the evidence of the accused, obviously I must acquit; 2) if I do not believe the testimony of the accused, but I am left in reasonable doubt by it, I must acquit; 3) even if I am not left in doubt by the evidence of the accused, as the trier of fact I must ask myself whether, on the basis of the evidence which I do accept, whether I am convinced by that evidence of the guilt of the accused. [ 60 ] In this case, I do not accept Mr. Prince's evidence, nor does it leave me with a reasonable doubt as to the downloading of the child pornography. Mr.

Prince's evidence was filled with inconsistencies, both internally and externally. He frequently resiled from an answer that he previously provided, either in direct examination or even in cross-examination. An example of the inconsistencies and

contradictions within his own evidence lie in the testimony around the creation of his résumé found on the external hard drive. In direct examination, he testified he created it on his father's desktop computer. In cross-examination, he testified he could have created it on his father's computer. When confronted with the fact that the forensic analysis had it created on May 29, 2010, prior to the breaking of his own laptop shortly after he moved to his father's residence in June 2010, he testified that he may have created it on his sister's computer. [ 61 ] More significantly, however, Mr.

Prince would have the court believe that the external hard drive was his father's and that somehow the résumé ended up on the external hard drive, a device, on his own evidence, that he had to ask his father permission to use. The forensic technical examination reveals, however, that the résumé was created and last accessed in the external hard drive on May 29, 2010, at a time prior to his moving to his father's residence. [ 62 ] Thus, Mr. Prince's evidence on this point is both internally inconsistent and externally inconsistent with other forensic evidence. Mr.

Prince's evidence on the use of the external hard drive is externally inconsistent on another front. He testified that just before his laptop broke in July 2010, he asked his father if he could put some of his stuff on the external hard drive. However, Sgt.

Rostie's analysis of the external hard drive revealed that, in addition to the accused's résumé, a group photo and the notes of the conversation about moving to the reserve were on the external hard drive as of May 29, 2010. [ 63 ] More significantly, however, two files linked to the accused, one called "Jesse's files" and another called "Jesse's court shit!!!" were created on the hard drive on February 25, 2009. In addition, Kayla Archambault's folder was added to the hard drive on January 7, 2010.

Thus, these last three items were added to the external hard drive long before the accused's move to his father's residence. Moreover, the admission of ownership of the external hard drive is more consistent with Mr. Prince's control of the content being placed on the external hard drive. [ 64 ] Mr. Prince also contradicted himself on the issue of the hibernation setting on the computer. He claimed the computer was set up in such a fashion as to never require the password being entered, except when the computer was restarted after a shut down.

However, the default setting in place on the computer required the entry of the password after 30 minutes of no use. Mr. Prince had no explanation for this and claimed that he did not know if a password was required. [ 65 ] Finally, Mr. Prince's evidence flies in the face of common sense. The import of his evidence is that the computer was a family public computer, available to all, although found in his bedroom at the time of his arrest.

He would also have the Court believe that other users, including his father and nephew, would download programs onto the computer, engage in chats and communications about child pornography, and exchange such materials in the open living room area of the residence. [ 66 ] In effect, Mr. Prince suggests that either his father, nephew, or visitors to the residence downloaded the child pornography, either in the open living room area of the house, or perhaps did this in his bedroom.

Given the highly illegal nature of such materials and the seemingly graphic nature of them as outlined in para. 18 of the admissions of fact, as well as the technical reports of Sgt. Rostie, it is preposterous to suggest that the materials were downloaded in such a public way and left readily available on the computer desktop for all to use and see. [ 67 ] I reject Mr. Prince's evidence completely and find it to be entirely fabricated. Having rejected Mr.

Prince's evidence, I must set it aside and determine, on the evidence that I do accept, whether the Crown has proven beyond a reasonable doubt that the only rational conclusion on the totality of the evidence is that Mr. Prince downloaded the child pornography found on his desktop computer and his external hard drive, such that he was in possession of the images and videos of child pornography. Positions of the Crown and the defence [ 68 ] The position of the defence is that because Sgt.

Rostie agreed that: 1) she could not put the accused or anybody else, for that matter, at the keyboard when the child pornography files were downloaded; 2) she could not eliminate other residents of the house on Green Mountain Road as not being responsible for downloading the child pornography; and 3) because there are other files on the external hard drive that came from other computers, not just the desktop computer, I ought to have a reasonable doubt that the child pornography found on the accused's external hard drive and his desktop computer was his. [ 69 ] Moreover, Mr.

Prince denied downloading the child pornography. [ 70 ] The position of the Crown is that when the evidence is assessed as a whole, it has established beyond a reasonable doubt that the accused, Jesse Prince, was the person who downloaded the images and videos and was in possession of the child pornography. Analysis [ 71 ] In my view, the Crown has more than amply demonstrated, beyond a reasonable doubt, that the accused, Jesse Prince, downloaded the child pornography to the desktop computer and the external hard drive. The evidence of Sgt.

Rostie in cross-examination that it was possible that others might have done so was no more than speculative suggestions, not grounded in the reality of the totality of the evidence and the reasonable inferences that can be drawn from it. I will explain why I am satisfied beyond a reasonable doubt that the Crown has proven that it was Mr. Prince who accessed and downloaded the child pornography on the two devices in issue.

[72] As it is clear that this is a circumstantial case, the jurisprudence from the Supreme Court of Canada on circumstantial evidence,most recently articulated in R. v. Villaroman, 2016 SCC 33, governs the analysis. [73] In Villaroman, the accused was having difficulty with his laptop computer, so he left it with a repair shop. The technicianrepairing the laptop located child pornography on it. The technician called the police. A search of the laptop by the police confirmed thepresence of child pornography. The accused was convicted at trial.

On appeal, the Alberta Court of Appeal entered an acquittal based onits finding that the trial judge had committed error in his application of the law on circumstantial evidence. [74] The Crown's appeal to the Supreme Court of Canada was allowed, but the matter was remitted to the Alberta Court of Appealfor hearing and disposition on the Charter issues raised by the search of the laptop and the failure to exclude the evidence pursuant to theframework established in the s. 24(2) Charter jurisprudence. [75] In addressing the issue of the applicability of the old rule in Hodge's Case, Mr.

Justice Cromwell, writing for the court, held thatreasonable inferences logically based upon the evidence or lack of evidence that are inconsistent with guilt inevitably mean that theCrown's evidence does not meet the standard of proof beyond a reasonable doubt: see Villaroman at para. 35. [76] Moreover, a theory alternative to guilt is not speculative by the mere fact that it arises from the lack of evidence. A gap in theevidence may result in inferences other than guilt.

However, those inferences must be reasonable, given the evidence and the absence ofevidence assessed logically, and in light of human experience and common sense: Villaroman at para. 36. [77] Cromwell J. went on to hold: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [78] This direction from Villaroman informs my assessment of the evidence in this case.

In my view, when the evidence isconsidered as a whole, including the various events comprising the timeline of the use of the two devices, I am led to the inexorableconclusion that the only reasonable inference is that the accused, Jesse Prince, accessed, downloaded, shared, and possessed the childpornography located on the desktop computer and the external hard drive. [79] The evidence establishes the following facts: 1) Mr. Prince owned the two devices and they were found in his bedroom, an area where he exercised control and access tothe devices. 2) Mr.

Prince did not move into his father's residence on Green Mountain Road until sometime in June 2010. 3) Mr.

Prince's external hard drive contained forensic digital information that establishes that his personal information,including photographs of himself, a résumé, two folders (Jesse's files and Jesse's court shit), and chat logs about moving to the reservewere either created and/or had last access dates between February 25, 2009, and May 29, 2010, all dates prior to his move into hisfather's residence. 4) A master file table entry on the external hard drive for the cbaby abuse file of child pornography discussed betweenStonerguy and Det. Sgt.

Parisien listed a creation date of March 18, 2010, indicative that that file had been on the external hard drive at apoint in time prior to Mr. Prince moving to his father's residence. The file had since been overwritten. 5) On the external hard drive, child pornography images were found in the recycle bin and one deleted folder entitled "loco"contained both child pornography and photographs of the accused. This folder was deleted from the external hard drive at approximately12:12 p.m. on August 1, 2010. 6) Less than 30 minutes before the loco folder was deleted, photos of Mr.

Prince and family and the INTRO DEMO.wmvvideo for the Street Kingz were all copied to the external hard drive. 7) The only other evidence of another user storing materials on the external hard drive was with respect to KaylaArchambault, but that folder of materials was added on January 7, 2010, and no other access times were recorded. 8) The desktop computer was password protected with a default in the hibernation setting of the computer requiring that apassword be entered after 30 minutes of inactivity. 9) There was only one user profile on the desktop computer, it was password protected. Moreover, Mr.

Prince's Facebookaccount was permanently logged into on the desktop computer. 10) The Facebook account showed activity by Mr. Prince on numerous occasions in excess of 100 times in the 25 days after thenew operating system was installed, but before the search warrant was executed, and there was no evidence of any other possible useraccessing that Facebook account as a portal to other personal information on the internet. 11) The joco2222 Yahoo Messenger account was bookmarked in the internet favourites of the user account "Moi" on thedesktop computer.

Sergeant Rostie found evidence of instant messaging chats between joco2222 and a user called "Register_monkey",

the content of which indicated that the user joco2222 used the desktop computer to send child pornography images to a user identified as "luvynggirls12" on September 17, 2010. In my view, when one recalls that the usual purpose of bookmarking favourites on a computer is to allow easy access to a frequently visited site, it seems speculative in the extreme to conclude that a visitor or other resident of the home would put their email or messenger account onto someone else's computer, particularly where the account is used for discussing and exchanging child pornography. 12) The timeline contained in Sgt.

Rostie's technical examination report of October 17, 2017, found in Ex. #2 at Tab 6, provides a compelling picture of the use of the accused's external hard drive to store child pornography prior to the accused moving into his father's residence and after. It also demonstrates deletions of child pornography from the accused's external hard drive within minutes of personal photographs of the accused being added to the external hard drive. 13) Digital artefacts found on the accused's desktop computer indicate that the GigaTribe peer-to-peer file-sharing system was downloaded onto the accused's computer.

Stonerguy's account was created on GigaTribe on June 25, 2010, and artefacts with respect to the user Stonerguy were located in the page file and hibernation files on the operating system and unallocated space of the accused's desktop computer. 14) References to the cbaby abuse file discussed between Stonerguy and Det. Sgt.

Parisien were located in the page files of the accused's computer, indicative that the file had been accessed from the accused's computer. 15) Information about the cbaby abuse file being created on March 18, 2010, was also found in the master file table entry of the accused's external hard drive, indicative that the file had been on that device as well. [ 80 ] The totality of the evidence with respect to the use of the external hard drive demonstrates, through the content and digital information found on it, that the accused, who owns the device, had control of the hard drive prior to moving into his father's residence and stored materials on it for some significant time prior to moving into his father's residence. [ 81 ] Images of child pornography and digital evidence of child pornography having been on the external hard drive are intermingled with activity directly linked to the accused. [ 82 ] Insofar as the desktop computer is concerned, the totality of the evidence demonstrates that the accused owned the computer, was the only identified user of the computer, had the computer under his control in his bedroom, had a Yahoo Messenger account bookmarked on the internet favourites that was used to discuss and exchange child pornography, and contained digital artefacts of the GigaTribe peer-to-peer file-sharing system, the user Stonerguy, and the cbaby abuse file that was provided to Det.

Sgt. Parisien. [ 83 ] In the totality of the circumstances, when the evidence is considered as a whole, there are no other reasonable possibilities or inferences than that Mr. Prince downloaded and possessed the child pornography found on his desktop computer and his external hard drive. Suggestions to the contrary are merely fanciful speculation. [ 84 ] There is one other item to address. During the course of the evidence and during submissions, Mr.

Pennington alluded, on occasion, to the fact that the accused's residence on Green Mountain Road was not located within the corporate boundaries of the City of Penticton, but rather on the Penticton Indian Reserve. In my view, nothing turns on that geographical distinction. The indictment charges that the offences occurred "at or near Penticton, in the Province of British Columbia". The evidence overwhelmingly supports that the Crown has established location and jurisdiction beyond a reasonable doubt. [ 85 ] Mr. Prince, will you please stand up. Mr.

Prince, I find you guilty of Counts 1, 2, 5, and 6 on the indictment. You may have a seat. “Ker J.”

Appendix “A”