R. v. Stevens Date:, 2016 BCPC 90

Citation: R. v. Stevens Date: 20160115 2016 BCPC 0090 File No: 202165-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. ANDREW MARK STEVENS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: R. Beram Counsel for the Defendant: J. Michaels Place of Hearing: Surrey , B.C. Dates of Hearing: January 26, 27, 28, 29, February 2, May 5, October 21, 22, 23, 2015 January 7, 8, 2016

Date of Judgment: January 15, 2016 [ 1 ] THE COURT: By way of introduction, on the evening of October 21st, 2013 the accused, Mr. Stevens, was attempting to cross from the United States into Canada at the Pacific Highway Border Crossing. He was referred for a secondary inspection. The secondary inspection revealed a cell phone in the vehicle that he was driving, which was then examined by Border Services Officers. They concluded it had questionable photos, at least one of which constituted child pornography. Mr.

Stevens was then arrested for that offence and in the course of conducting a further examination of the vehicle a laptop computer was seized. The laptop was also examined. Photo images found on the cell phone and laptop led to Mr. Stevens being charged with possession of child pornography, contrary to s. 163.1(4) of the Criminal Code .

These are my Reasons for Judgment whether the Crown has proven the charge beyond a reasonable doubt. [ 2 ] In an earlier ruling dated February 2nd, 2015, I concluded that 28 images on the cell phone and 75 images on the laptop satisfied the definition of child pornography under s. 163.1(1) (a)(ii) of the Criminal Code . The question to be answered then is whether the accused, Mr. Stevens, was in possession of these images. [ 3 ] Section 4(3) of the Criminal Code defines "possession." Section 4(3) (a)(ii) has particular application in Mr. Stevens' case.

That paragraph reads as follows: For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (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 another person. That is often referred to as constructive possession. Section 4(3) (a)(

i) states that: (

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. [ 4 ] The subparagraph on constructive possession was broken down into its constituent elements by Mr. Justice Fish, as he then was, of the Supreme Court of Canada at paragraph 15 in R. v. Morelli as follows: For the purposes of the Criminal Code , "possession" is defined in s. 4(3) to include personal possession, constructive possession ...

It is undisputed that knowledge and control are essential elements common to both. [ 5 ] And then at paragraph 17: Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [ 6 ] With respect to the analysis of the facts of the present case, the cell phone and laptop, I find, were in Mr. Stevens' physical possession.

The cell phone was in the vehicle that he had sole possession of, even if Mr. Stevens was not the registered owner of the vehicle. It was in the centre console plugged into a charger in the auxiliary power outlet in plain view. Furthermore, he claimed ownership of the cell phone to the Border Services Officers conducting the secondary inspection, as well as Cst. Howard, when she took a statement from him on October 21st, 2013 subsequent to his arrest.

That statement has been ruled admissible in an earlier ruling. [ 7 ] With respect to the laptop, it was in a case on the back seat of the vehicle with the power cords inside. In the statement to Cst. Howard, Mr. Stevens claimed possession of the laptop as well. [ 8 ] The next question is whether the Crown has proven beyond a reasonable doubt that the accused had knowledge of and control over the contents of the cell phone and the laptop and thus the pornographic images. [ 9 ] I am satisfied the images themselves were within Mr. Stevens' control. "Control" was defined in Morelli where Mr.

Justice Fish, speaking for the majority, concluded that for someone to have the requisite measure of control they must possess the underlying data files contained in the electronic media. Quoting from paragraph 14 of Morelli : 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 . [ 10 ] Cst. Garcia testified as an expert in the collection, preservation, analysis and

interpretation of digital data in the trial before me. He analyzed the data found in the cell phone and the laptop computer. I accept his evidence that the pornographic images had been accessed and downloaded onto the cell phone between September 10th, 2013 and October 20th, 2013. The images on the laptop had been downloaded and stored in separate file folders between January 2nd, 2012 and September 4th, 2013. Further, that some images were downloaded using file sharing software. In his statement to Cst. Howard, Mr.

Stevens admitted that he views the photos on websites and then saves ones in his computer that he wants to view again later. [ 11 ] From the evidence it is clear that the pornographic images were not merely stored in the cache of each item as a result of being viewed online. The images were downloaded, stored and capable of being retrieved from those storage locations with ease. The accused being in possession of the laptop and cell phone, had control over the stored images.

[12] The next question is whether the accused had knowledge of the images that constitute child pornography. In his statement toCst. Howard the accused admitted knowledge of the images on the cell phone and asserted that he did not think they amounted to childpornography, which he felt was images of children engaged in physical sexual acts. He obtained some images, he said, from a websitecalled "J.B. Chan"; the "J.B." is short for "Jailbait." The other website was one called "Top Heavy." [13] With respect to the laptop, Mr. Stevens told Cst. Howard that he did not know the contents of the laptop.

He did not think thatthere would be pornographic images on it, but he did say that he synchronized his phone to the laptop when he connected the two. Furthermore, that if there were images on the laptop he surmised they would be the same images as were found on his telephone. Heclaimed that he does not use the laptop, or at least have exclusive use of it; rather, his partner, his partner's children, and him, were theusers of the laptop.

However, he did admit that any photographs on the laptop would only have been downloaded through his usergroup. [14] It is clear from the accused's statement that he was aware of the images on the cell phone and indeed was responsible for theirpresence. As for the laptop, a number of photos were duplicates between the cell phone and the laptop. The connection between thisdata on the phone and the computer leads to the inescapable conclusion that the presence of images on the laptop were the result ofactions from the same user as the cell phone.

Adding to that conclusion is that the accused was responsible for the images on the cellphone. He was the possessor and owner of the cell phone and the laptop. He admitted that any photos on the laptop would have beendownloaded through his user profile. [15] I am satisfied beyond a reasonable doubt that the accused had knowledge of the pornographic images on the phone and thelaptop. [16] Neither of the statutory defences contained in s. 163.1(6) or (7) apply, so what of the accused's claim at times in his statement toCst.

Howard that he thought the images were, one, not pornography, and two, that the girls depicted were not under age? [17] I find that the accused had an erroneous and misguided understanding of the definition of child pornography. It is inconsistentwith the definition stated in s. 163.1(a)(ii) which states that: ... child pornography means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under theage of eighteen years. [18] In R. v. Sharpe, 2001 SCC 2 , [2001] 1 S.C.R. 45, Chief Justice McLachlin stated at paragraphs 50 and 51 that theanalysis of whether images met the definition of pornography under s. 163.1(1)(a)(ii) was objective.

Quoting from paragraph 50: The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic"as the depiction of the child's sexual organ or anal region. [19] In R. v. Smith, [2011] B.C.J. No. 2607, Mr. Justice Brown stated it this way at paragraph 66: Before a judge can find an accused guilty of a charge of possession of child pornography, the Crown must prove beyond a reasonabledoubt the accused knew they were in possession of material that corresponds to one of the sets of criteria set out in s. 163.1(1) of theCriminal Code.

To be clear, the accused does not have to be aware the images satisfy the Criminal Code definition of childpornography. That is, the accused must know what the images or videos actually contain but the accused does not need to know thattheir contents satisfy the definition of child pornography as it appears in the Criminal Code. [20] It follows then that Mr. Stevens' personal belief of whether the material constitutes child pornography is irrelevant and is not adefence to the charge. With respect to his comments in his statement to Cst.

Howard about his belief in the age of the subjects of theimages, he said that the websites from which he got the images claim that the girls depicted are models and over the age of 18. Furthermore, that he believed that if the image was of full frontal nudity the person depicted was "old enough." I note 18 is, according tothe Criminal Code, when someone is "old enough." [21] Tellingly, and quoting from the statement Mr. Stevens gave to Cst. Howard from the twelfth page of the transcript of hisstatement, the following exchange took place: Question by Cst. Howard: Q.

Okay, so the image that you're telling me that the images that you see that you've um put onto your phone to you seem how old? How old do the girls look? A. I would say that anything that's showing any skin all over 13. Q. Okay? A. All of them. Q. All right? A. Now, I know there's probably a couple of them that are younger. Q. Yeah. A. And it's just like, you know, some you just save out of pure shock, you know.

Q. Mm-hm. A. But I don't think there's any shocking on my phone. Despite that exchange between Cst. Howard and Mr. Stevens it is, in any event, an objective analysis that applies. The objective analysis as discussed above is what governs, not Mr. Stevens' belief. [ 22 ] In conclusion, I find that the accused had the requisite degree of knowledge of, and control over, the photographs on his cell phone and laptop that constitute child pornography to find him in possession of the photos and thus in possession of child pornography. Accordingly, I find him guilty of the charge. (REASONS FOR JUDGMENT CONCLUDED)