2023 QCCA 824, 2023 QCCA 824

Unofficial English Translation of the Judgment of the Court Abel c. R. 2023 QCCA 824 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF QUÉBEC No: 200-10-003747-206 (200-01-205948-163) DATE: June 22, 2023 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. SIMON RUEL, J.A. PETER KALICHMAN, J.A. JEAN-BAPTISTE ABEL APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor and CANADIAN CENTRE FOR CHILD PROTECTION IMPLEADED PARTY JUDGMENT WARNING : An order restricting publication was made by the Superior Court (the Honourable Carl Thibault) on August 2, 2019, under ss. 486.4 and 486.4(3) Cr.C ., directing that any information that could identify the victims shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The appellant is appealing a guilty verdict delivered on February 19, 2020 by a jury following a trial presided by the Honourable Carl Thibault of the Superior Court, district of Québec, the jury having convicted the appellant of possession, accessing and distribution of child pornography. [2] For the reasons of Doyon, J., with which Ruel and Kalichman, JJ.A. concur, THE COURT: [3] DISMISSES the appeal; [4] ORDERS the appellant to report to prison authorities within 72 hours of this judgment, in accordance with the judgment rendered on August 6, 2020.

FRANÇOIS DOYON, J.A. SIMON RUEL, J.A. PETER KALICHMAN, J.A. Mtre Catherine Soucy For the Appellant Mtre Sonia Lapointe DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Mtre Jessy Héroux BATTISTA, TURCOT For the Impleaded Party Hearing date: April 18, 2023 REASONS OF DOYON, J.A. [5] The appellant was convicted by a jury of possession, distribution and accessing of child pornography ( ss. 163.1(4) ( a ), 163.1(3) and 163.1(4.1) (

a) Cr.C . ). [6] He contests the verdict and advances three submissions to the effect that the trial judge erred by unduly limiting access to the prosecution’s evidence, by deeming an out-of-court statement made in the presence of police admissible, and by misdirecting the jury. [7] Before addressing these three grounds of appeal, I wish to provide some background.

BACKGROUND [8] The police received information that the appellant, a service member, had distributed an image that constituted child pornography. [9] Sûreté du Québec investigators in charge of the case decided to meet with him at the Valcartier military base, his workplace.

To do that, they contacted the appellant’s superiors to inform them that they wished to meet with him, on a voluntary basis, on the grounds that he was suspected of being involved in a child pornography case. [10] On October 19, 2016, military police therefore contacted the appellant to inform him that Sûreté du Québec investigators wanted to speak with him. The military police indicated that the investigators wanted to meet with him on a voluntary basis with regard to an information in which it was alleged that he possessed and distributed child pornography.

[11] He agreed to meet with the investigators. Despite what the appellant would argue, the military police did not give him any order to do so. The appellant’s superior even testified that no disciplinary action would have been taken had he refused. In short, everything took place with the appellant’s consent. [12] The Sûreté du Québec investigator filled out a form entitled [ TRANSLATION ] “Voluntary statement by person of full age.” He then cautioned the appellant and informed him of his right to counsel.

The appellant confirmed that he understood, and the investigator reiterated that he was with them on a voluntary basis. The appellant stated that he wanted to exercise his right to counsel, and, at 9:49 a.m., he spoke confidentially by telephone for ten minutes with a legal aid lawyer. [13] After the call, he came back into the room and told the investigator that his lawyer had informed him that he could leave if he wanted, without however expressing any desire to go, according to the police officer.

The investigator replied that he could indeed leave, but added that he wanted to explain to him the circumstances of his investigation. At 10:00 a.m., the appellant signed the voluntary statement form in which he indicated that he indeed understood the caution and the right to counsel. [14] When the investigator showed him the image referred to in the Information, the appellant replied that he viewed nothing more than adult pornography on the Internet, and that he did not know the person to whom he had allegedly sent the image.

However, he admitted that the email address associated with the events was in fact his. [15] Following that information, the appellant was arrested for possession and distribution of child pornography and the investigator read him his rights once more, which he said again to have fully understood; it was 11:06 a.m. The police officer informed him that a search would be carried out at his home, the appellant replying that he was not worried. [16] A search warrant was therefore executed at his home at the same time. The police seized a desktop computer, laptop computers, and hard drives.

Several files containing child pornography in the form of photographs or videos were found in the computer equipment. Notebooks were also found containing drawings done by the appellant representing youths aged around 14 or 15. Consequently, he was then arrested for production of child pornography, but those charges were withdrawn before trial. [17] At 11:15 a.m., he asked to speak to the same lawyer, which he did from 11:15 to 11:24 a.m.

At 11:47 a.m., he signed a document authorizing a search of his mobile phone, which was seized at 12:10 p.m. in his car. [18] Everyone then headed to Sûreté du Québec headquarters , where they arrived at 12:30 p.m.

The interrogation, which was videotaped, began at 1:32 p.m. and ended at 7:39 p.m. [19] The video recording does not show any promises or threats made by the police nor any suggestion that he would benefit by cooperating. [20] The investigator’s questions became increasingly specific and focused, which prompted the appellant to ask whether he was [ TRANSLATION ] “entitled to have a lawyer here,” The investigator replied that he had already exercised his right to counsel.

During a discussion that ensued, the appellant stated that he was tired and overcome by emotion, which led the investigator to suggested that they [ TRANSLATION ] “should get it over with today,” to which the appellant agreed. The statement continued. [21] Some time later, the investigator told the appellant that they had found child pornography in the computer equipment seized at his home. The appellant asked whether he had the right to counsel, to which the investigator answered that he did not, since he had already spoken to a lawyer and there had been no change in the investigation.

In reply to the question of whether he had the right to remain silent, the police officer reminded him that he had that right, as follows: [ TRANSLATION ] INVESTIGATOR You have the right to remain silent. But what you have to understand today is what good is it for you to remain silent. You know, so far, I haven’t lied to you. I have not told any lies, I’m telling you, look...

JEAN-BAPTISTE ABEL I know but (…) […] INVESTIGATOR It is your right to remain silent, but I have the right to ask you questions because I have the right to let you know what we have. JEAN-BAPTISTE ABEL Go on. [22] The interrogation continued without the appellant speaking to his lawyer and he then confessed that he had accessed and possessed child pornography. [23] In his testimony given on the voir dire , the appellant stated that he could not have refused to meet with the investigators because of the military system that compelled him to cooperate with the police.

Also, contrary to his superiors’ testimony, he said that they told him to cooperate. [24] The appellant advanced three arguments that I will restate as follows: (1) the judge unduly limited access to the evidence in the prosecution’s possession; (2) he erred in finding the statement made to the police to be admissible; (3) the final instructions contained errors regarding important aspects of the case. Let us consider these grounds of appeal.

ACCESS TO THE EVIDENCE [25] On June 16, 2017, the appellant filed an initial application with the Court of Québec for access to a thing seized in order to obtain a full copy of all exhibits, including those containing child pornography. Because that evidence involved child pornography (which is not in dispute), the respondent instead proposed terms of access, and invited the appellant and his expert to review the material at Sûreté du Québec premises to retrieve data that did not contain child pornography for analysis purposes. The expert’s identity would have to be disclosed and verified for security purposes.

He would also have to undertake to comply with the terms of access. The appellant rejected that avenue. [26] On July 12, 2017, the Court of Québec denied the application requesting that copies of all exhibits be delivered to the appellant and adjourned the hearing to allow the appellant’s expert to verify certain information. After several adjournments, the hearing ultimately did not take place. [27] The appellant demanded that all of the evidence be provided to him and rejected every offer as to terms. He even refused to proceed with election as to mode of trial until his demand was met.

He was therefore deemed to have elected to be tried before a court composed of a judge and jury. [28] During the preliminary inquiry, certain files were viewed, and police experts testified. [29] A second application for access was filed on November 16, 2018, following the preliminary inquiry.

The appellant again demanded that all exhibits be sent to him, and, more specifically, that he be provided with a mirror copy of the computer equipment to allow him to analyze the evidence and submit it to an expert [ TRANSLATION ] “in order to gain a clear understanding of the details relating to that information and the technical data associated with that information,” as set out in his application . [30] The respondent and the intervener Canadian Centre for Child Protection are objecting and propose, yet again, access to the evidence at Sûreté du Québec premises upon certain terms, in order to protect children and prevent the dissemination of child pornography. [31] That application was heard by the trial judge.

An investigator from the technology division of the Sûreté du Québec testified regarding the precautions to be taken before authorizing the consultation of files containing child pornography and the feasibility of an expert assessment under the conditions proposed by the respondent. On-site consultation by a defence expert would take a half day and

an expert assessment would take about a week. [32] The judge concluded that the right to make full answer and defence was not infringed by the terms proposed by the prosecution: [translation] [50] Finally, the terms proposed by the Crown most certainly result in inconveniences or irritants for the applicant, his lawyer and theexpert that they will ultimately retain.

However, apart from the logistical inconveniences, the applicant has not shown how his right tomake full answer and defence is infringed by the fact that he must consult the evidence at Sûreté du Québec premises, rather thanreceiving a full copy thereof. [33] He also rejected the argument that the terms were unduly stringent, to the point that they prevented any expert from acceptingthe mandate: [translation] [52] The evidence also shows that the many experts contacted by the applicant did not refuse to accept the mandate on account of theconstraints imposed by the Crown.

That was not at all the case: the list of potential experts who refused to accept the mandate actuallyincluded firms that for the most part do not accept mandates from individuals.

Of the 29 firms listed, two refused because they wereunable to conduct sufficiently thorough analyses, 14 did so because they worked only for businesses or did not work for individuals, ninedid so because they did not conduct analyses or troubleshooting, one did so because it did not want to be exposed to that type of material,and three did so because they did not have the required skills or availability. [53] Given the highly sensitive nature of the material, the interests at stake, and the applicant’s refusal to be subject to restrictions thatwould mitigate the risk of dissemination of child pornography, it is necessary to limit the possibility or risk that the evidence bedisseminated, copied, or circulated, or that unauthorized third parties have access to it. [54] The Court is of the opinion that the Crown has reasonably exercised its discretion in respect of the disclosure of evidence and thatconsultation in a secure environment strikes a fair balance between the applicant’s right to the disclosure of evidence and to make fullanswer and defence and the rights and interests of the victims who appear in the material of which a copy is requested. [34] I see no error in that decision.

Although the accused is entitled to disclosure and may obviously apply for additional disclosure,the prosecution retains a discretion to choose “the timing and manner of disclosure”: R. v. Stinchcombe, (SCC), [1991] 3S.C.R. 326, p. 339.

However, refusal to disclose relevant information can only be justified “on the basis of the existence of a legalprivilege which excludes the information from disclosure”: Stinchcombe, p. 327. [35] However, that discretion may be reviewed by a court of competent jurisdiction, and so the judge of the Superior Court hadjurisdiction to examine the conduct of the prosecution, which he did. [36] It is obvious that the evidence seized from the appellant’s computers and mobile telephone is relevant for both the prosecutionand the defence.

The prosecution therefore had to show that limiting access to the evidence was in the interests of justice: Stinchcombe,p. 340. I have no doubt that this was the case here. While it had to be disclosed and, as a rule, communicated, the fact remains that it fellinto the category of evidence access to which must be circumscribed. As Watt and Paciocco, JJ.A. wrote in York (Regional Municipality)v.

McGuigan, 2018 ONCA 1062, there is some evidence that must not be reproduced or provided to the defence: [93] Ordinarily, disclosure is achieved by providing photographs, photocopies or electronic copies of documents or things capable ofreproduction: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, theHon. G. Arthur Martin, Chair (Ontario: Queen's Printer, 1993), at pp. 234-35, 470-72, recommendation 41.12 (the "Martin report"). Thisis arguably what Sopinka J. envisaged in Stinchcombe when he spoke, at p. 338 S.C.R., of "[p]roduction to the defence".

Yet somethings, such as pornographic images of children, should not be copied. Other information may be too sensitive to lose control over. Inthese exceptional cases, where it is in the interests of justice to do so, inspection by the defence may have to do: R. v. Blencowe (1997), (ON SC), 35 O.R. (3d) 536, [1997] O.J. No. 3619 (Gen. Div.), at p. 44 O.R. [page100].

[37] In some instances, at the time when the prosecution makes its decision, inspection will suffice and the release of the exhibits willbe refused so as not to lose “control” of that evidence. Sometimes, and I would even say generally, material containing child pornographyshould not be copied or otherwise released to the defence at that stage or even later. On one hand, it is forbidden to possess these exhibitsand it is obviously necessary to completely restrict their dissemination.

An undertaking by counsel and the accused must be given, at thevery least; however, even the most stringent undertaking signed by a lawyer may be insufficient in certain cases, since the accused mightthen want to examine them personally and a computer error resulting in the circulation of the material would always be possible. On theother hand, the dignity and privacy of children who are victims of sexual violence must be properly protected, and sometimes thisrequires stringent terms for disclosure, and even access.

The dissemination of child pornography, even inadvertently, fuels that sexualviolence since the child victim “has to live with the knowledge that others may be accessing the films or images, which may resurface inthe child’s life at any time”: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, para. 48, references omitted. [38] The prosecution must naturally make its decision having regard to the right to make full answer and defence. On that point, Iagree with Cameron, J. when he wrote, in R. v.

O. (W.A.), 2001 SKCA 64: [22] With that, we may turn to the second limb of the issue, concerning the exercise of the Crown's discretion in this instance. Havingdisclosed the existence and content of the tape, Crown counsel chose not to provide a copy of the tape to defence counsel, offeringinstead to provide defence counsel an opportunity to inspect and view the tape.

Crown counsel did so on the basis of protecting theprivacy interests of the complainant, on the one hand, and of enabling the accused to examine the tape, on the other. [23] In our judgment, the Crown cannot be said to have exercised its discretion on an improper basis, though it remains to considerwhether the effect was to infringe the appellant's right to make full answer and defence. The complainant was deeply concerned lest herprivacy, and that of her children, be further compromised should the tape fall into another's hands.

Given the content of the tape and therisk of it falling into the wrong hands, this is readily understandable and was worthy of consideration.

And if, as Crown counsel thought—and Dawson J. held—the appellant's right to make full answer and defence was not compromised in the result, there can be nointerfering with Crown counsel's exercise of this discretion. [39] To summarize, like any discretion, it must be exercised judicially and judiciously, which means that the prosecution’s decisionmay be reviewed by a court of competent jurisdiction and that the right to make full answer and defence must be taken into account.However, the appellant has not demonstrated here that his right under the Canadian Charter of Rights and Freedoms has been infringed,as it was his burden to do so: R. v.

Dixon, (SCC), [1998] 1 S.C.R. 244, para. 32 and R. v. O. (W.A.), supra, para. 25. [40] In reality, the appellant made no effort to try to find a solution. He persisted in unequivocally demanding a complete copy of theevidence, without considering the alternatives, and, most importantly, without showing how examining the evidence at Sûreté duQuébec premises deprived him of his right to make full answer and defence. He simply advanced hypotheticals unrelated to the case,even in his brief.

Thus, after stating that [TRANSLATION] “examination of the files, which is essential to the appellant’s full answerand defence, requires having a copy of the files and not merely being able to consult them at the police station,” he wrote: [TRANSLATION] This enables the Defence to make its own assessment of the quality of the evidence and conduct possible investigations.

Thus, byviewing the files, the Defence can also observe the participants in the photograph, the place where the photograph was allegedly taken,the participants’ facial expressions, and the marks or absence of marks on the participants’ bodies. [41] I do not see how an examination at the police station negates the possibility of observing the participants, the place, the facialexpressions, or the marks on their bodies. Moreover, I highly doubt that these could be significant facts for the defence.

In addition, noeffort was made, even at the preliminary inquiry, to establish the importance of having a complete copy of the evidence.

Thus, the[translation] Application by the Accused to obtain a copy of documents made in November 2018, which stated that [translation] “theAccused also needs to know the digital data associated with these documents, and not merely know the data that the Prosecutor wishes todisclose” and [translation] “the Prosecutor is depriving the Accused of the ability to make full answer and defence and is making theupcoming trial unfair,” does not explain how that was so necessary to ensure a full answer and defence.

The same is true of the assertionthat [translation] “the Accused has no way of assessing the quality of the evidence that the Prosecutor proposes to introduce against theAccused, both before, during and after the trial.” [42] Of course, the terms chosen by the prosecution were not ideal for the defence, but the accused is entitled to a fair trial, not aperfect trial. [43] The appellant and his lawyer had the opportunity to go to Sûreté du Québec premises to examine the exhibits. However, neitherof them did so.

If he was unable to effectively cross-examine the prosecution witnesses, it was not because of the refusal to release acomplete copy of the evidence to him, as the appellant maintains, but because he decided not to make any effort to at least consult theevidence before the hearing.

[44] Section 605(1) Cr.C. allows the judge to “order the release of any exhibit for the purpose of a scientific or other test orexamination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation foruse at the trial.”[1] In order to proceed with an expert assessment of the offence-related property, an accused must prove that their requesthas an “air of reality” and a more tangible basis than mere speculation: R. v. Eagles (1989), , (NS CA), 47 CCC (3d)129, p. 136; R. v.

R., 2019 ONSC 5533, para. 30. [45] In sum, the appellant has not persuaded me that his constitutional right to make full answer and defence was infringed or that hisarguments satisfy the requirements of s. 605 Cr.C., since they do not show that the prosecution’s requirements, as approved by the judge,did not constitute necessary or desirable terms, within the meaning of that section.

The respondent correctly noted that[TRANSLATION]: “by obstinately failing to at least examine the available evidence, he himself limited his own defences ....” At thevery least, he had to give it a try, review the evidence at Sûreté du Québec premises as many times as necessary, ensure that it was donein a context in which solicitor-client confidentiality was protected, and then, if necessary, make applications founded on the facts and noton mere hypotheticals.

By baldly and unconditionally demanding to receive a mirror copy of the evidence, the appellant merely invokedhis right to make full answer and defence, without any concrete arguments and without, in any way, taking into account the otherinterests at stake, particularly those of the young victims and the justice system. [46] When the trial judge wrote the following, he took into account all the circumstances of the case and all the interests at stake: [TRANSLATION] [38] It should be recalled that the applicant’s right to disclosure does not amount to an absolute right to obtain mirror copies of thematerial. […] [39] In exceptional cases, it may be sufficient, and indeed in the interests of justice even, to only give access to the material requestedand not to provide a copy.

The Crown may exercise a degree of discretion in this regard, provided that the accused is able to make fullanswer and defence: […]. […] [43] The applicant’s right to disclosure and to make full answer and defence is certainly essential, but there are competingconsiderations in this case that must be taken into account, including the victims’ rights at stake, notably their right to privacy, and therisk of dissemination of highly sensitive material. [44] The applicant seeks a full copy of the material seized, without any guidance and without proposing an expert or a procedure thatwould control the risk of disseminating copies to third parties.

His lawyer rejects any interference, arguing that he is entitled to be inpossession of that evidence, and adding, at the hearing, that no undue risk will be created in the event that he consulted a copy of thematerial at his office, on a computer with internet access, since the victims are unknown, and the files are circulating freely on the web. [45] The Court cannot agree with the applicant’s position. […] [53] Considering the highly sensitive nature of the material, the interests at stake, and the applicant’s refusal to be subject torestrictions that would mitigate the risk of dissemination of child pornography, it is necessary to limit the possibility or risk that theevidence might be disseminated, copied, or circulated, or that unauthorized third parties might have access to it. [54] The Court is of the view that the Crown exercised its discretion regarding disclosure of the evidence reasonably and thatconsultation in a secure environment constitutes a proper balance between the applicant’s right to disclosure and to make full answer anddefence and the rights and interests of the victims appearing in the material of which copies are requested. [47] I see no error that could justify intervention by the Court in this decision. [48] The Canadian Centre for the Protection of Children, the impleaded party and an intervener at trial, asks the Court to provide

guidance in order to identify the type of terms that would be acceptable in circumstances similar to this appeal. To do that, it referred to a2016

summary report produced at the trial, which was prepared following an investigation into the survivors of child sexual abuse for aclear understanding of the effects of this criminality on their lives. [49] Although this case is a good example of reasonable terms, some clarification might be useful to the parties and to judgesreviewing the terms of access to evidence involving child pornography and the terms of their disclosure to the defence. [50] In my view, courts must take the following factors into account:

(1) The potential harm inflicted on the victims. Whether the victims are known or unknown is irrelevant. The prejudice to their dignityin the event of dissemination, and sometimes even in the event of mere access to the images, must be kept in mind.

(2) The real danger of accidental dissemination. While technology can work wonders, it can also cause significant harm, eveninadvertently. Even if an officer of the court undertakes to keep everything confidential, the fact remains that accidental computeroperations can occur. There is an inherent risk that material of this nature will fall into the hands of third parties: R. v. Blencowe, (ON SC).

(3) The terms of access must therefore be precisely circumscribed and the consequences weighed, all the while ensuring that thedefence has sufficient access to the evidence to preserve its right to present a defence. For example, the following questions must beasked: who will have access to the evidence? Where? Can copies be made? Must undertakings be given? How will it be transported,how will it be transferred, if necessary?

How will each person’s duties and responsibilities be described and defined? [51] In addition to these factors, the number of persons who can have access to the evidence should be limited as much as possible.While the accused and their lawyer obviously have that right, the terms thereof still need to be determined. The accused’s collaborationand cooperation is called for, and the mere requirement of an undertaking to abide by the terms, signed by the accused, will not alwaysbe sufficient.

With respect to other persons, the accused has the burden of proving the need for them to be involved (for example, only anexpert is capable of addressing the defence’s concerns) and the means of achieving this.

In the case of an expert, only a qualified expertshould be able to access the evidence, to ensure that an unskilled third party, not capable of adequately addressing the defence’sconcerns, does not have access to evidence, which, I repeat, constitutes an offence outside the judicial context. [52] An expert must, at the very least, sign an undertaking to abide by the terms, which must, for their part, ensure the protection ofthe interests of both the victims and the accused and, more generally, the ends of justice.

Such terms could certainly include, forexample, the necessity of using a robust password and not making any additional copies, and the requirement to conduct the analysis ona computer that is not connected to the Internet. As the intervener noted, the judgment in R. v.

Pohl, 2021 MBQB 74, para. 25, provides agood example of such terms. [53] I am obviously not claiming that all the terms set out in Pohl should be imposed in all cases, since each case must satisfy its ownrequirements; however, I give that example to show how it may be necessary to frame an expert’s analysis, if indeed the expert must beauthorized to access and take possession of the evidence.

I also take this opportunity to point out that in all cases, an agreement betweenthe parties must be approved and imposed by a court, to further ensure compliance. [54] Of course, the preferred place for consulting the evidence should be police premises, all the while ensuring the confidentiality ofrelations between the expert and the accused or his or her lawyer. Transporting exhibits outside those premises should be authorized onlyif the accused proves that this is required.

As for copies, these should be prohibited, unless examination of the relevant factors justifiesmaking them, if, for example, it is established that the expert cannot conduct their assessment otherwise. In such a case, the copiesshould be encrypted, securely stored, while ensuring that no one else than the authorized person has access to them and returned to thepolice within the timeframe provided.

THE STATEMENT TO THE POLICE [55] The appellant submits that the investigator who arrested him violated his right to silence, since, as he wrote in his brief,[TRANSLATION] “he felt obliged to ‘cooperate’ with the police because of the rules in force in the Canadian Armed Forces” [referenceomitted]. He added that the statement was not free and voluntary since his superiors had told him to cooperate with the police and theinvestigator told him that it was in his interests to cooperate.

[56] He also claims that the investigator violated his right to counsel after his arrest, since he refused on two occasions to allow himto speak to his lawyer even though he had requested to do so.

He also wrote in his brief [TRANSLATION]: “The investigator failed tocaution the appellant when he obtained new information that could lead him to believe that the appellant had committed much moreserious offences than the one for which he had cautioned him,” more specifically, incest and the production of child pornography. [57] In my view, these arguments must fail for the following reasons. [58] Regarding the issue of whether the statement was free and voluntary, the judge found that: [TRANSLATION] [179] Nothing in the evidence tends to show that any promise or threat was made to Mr. Abel.

On the contrary, arecording of the interrogation shows that the exercise took place in a courteous, civilized and oppression-free atmosphere. Mr. Belley,the investigator, did not use any trickery, and the accused clearly had an operating mind. [180] There is no evidence that suggests that Mr. Abel was any different before the recording began or during the recording, or duringthe very short periods when he was out of the interrogation room, under police supervision, to go to the washroom. [181] Mr. Abel alleges that he was confused before, during and after his arrest.

In the video interrogation, the Court could observe adegree of nervousness on Mr. Abel’s part, which is entirely normal when a person is arrested and interrogated. However, the Court doesnot believe the accused when he states that he was confused and disconnected and was not aware of whether what was happening wasreal or not. [182] Considering that the Crown must prove beyond a reasonable doubt that Mr. Abel statements were free and voluntary, the Courtmust base the assessment of the accused’s credibility on the principles set out in R. v.

W. (D.). [183] The Court therefore does not believe the accused when he states that [translation] “in order to not hear the questions, he tuned out,he was disconnected, he was not aware of whether what was happening was real. He tried to find a connection with reality.” On thatpoint, one simply has to view the recording of the interrogation to realize that Mr. Abel was aware and was in no way disconnected orconfused to the point that the statements obtained were not made with an operating mind. His testimony raises no doubt.

When theaccused’s testimony is assessed by considering the evidence as a whole, his testimony raises no doubt whatsoever that the statementsobtained were made with an operating mind and in the absence of any confusion. [Reference omitted] [59] Those findings, both of fact and of law, are unassailable.

They are well founded in law and are essentially based on an assessmentof the credibility of the testimony in respect of which no palpable and overriding errors were shown. [60] The appellant submits that his statement was not free and voluntary, particularly because of his military status, because hissuperiors told him to cooperate with the police and because the investigator told him that it was in his best interest to cooperate. [61] A police officer may resort to trickery, unless it “shocks the community”: Rothman v. R., (SCC), [1981] 1S.C.R. 640, p. 697, or creates an atmosphere of oppression: Hobbins v.

R., (SCC), [1982] 1 S.C.R. 553, that would makethe statement involuntary. This remains the cardinal rule in this regard. The mere fact that a person in authority says that it is in aperson’s best interests to cooperate does not necessarily make the statement inadmissible. However, the appellant is not claiming that theinvestigator made threats or promises to him such as would make his statement involuntary, and the evidence shows that the policeofficer was not acting oppressively; quite the contrary. As the Supreme Court stated in R. v.

Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3,convincing a suspect that it may be in their best interests to make a statement is not prohibited conduct: [57] In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspectthat it is in his or her best interests to confess. This becomes improper only when the inducements alone or in combination with otherfactors, are strong enough to raise a reasonable doubt about whether the will of the subject has been subjugated. […]

[62] There was no inducement of that nature by the police officer. [63] With respect to the appellant’s superiors, despite what he claims, they all testified that there was no coercion. In fact, they stated that they had not suggested that he cooperate, and the judge clearly accepted their version. The appellant has not shown any error in this regard. [64] The appellant drew the Court’s attention to two excerpts from the captain’s testimony to show that his [ TRANSLATION ] “superiors instructed him to cooperate with the Sûreté du Québec investigator.” But this is not so.

In the first excerpt, the captain stated: [ TRANSLATION ] I assigned him duties, but for situations like that, we let people... we give them... we give them time off so they can go and cooperate. [65] Relieving service members of their duties so they can cooperate (I would add “if they wish”), which is quite the normal thing to do, in no way shows that the captain, in the case at bar, “instructed” the appellant to cooperate. [66] The other excerpt is as follows: [ TRANSLATION ] A. Yes.

I understood that he wanted to go, to help a friend, that he believed it was a situation that involved her apartment in Saguenay, a friend. So I told him: “That’s fine, go ahead, and we’ll see each other later.” Q. Fine. Now, you told him “go ahead,” then you told him about going to cooperate with the police? A . I... but, I... Q . That you thought it was normal for... A . It is... yes. It’s normal for... me, personally, I would get a call and I would want to go and help my friend, I would go and cooperate, I would go and talk, I would go and meet to see what he was talking about, but no more than that. Q . Fine.

So you let Mr. Abel go, I imagine, so he could take time off from his work and could go and see the police? A. That’s exactly what we did, yes. Q. Because from what you understood, it was on a voluntary basis? A . Yes, it was on a voluntary basis, so I allowed him to go if he wanted to go. [67] It can be seen that the captain’s assumptions had nothing to do with an inducement to cooperate, as the appellant argues. [68] Based on the captain’s testimony and that of a warrant officer and a sergeant, the judge found that the appellant went to meet with the investigator voluntarily.

He believed their testimony that the appellant went to the meeting freely and willingly, without them

insisting in any way. Here again, the appellant has not shown any error. [69] As we have just seen, the captain did not even know the reasons for the meeting. He added that no penalty could have been imposed for refusing: [ TRANSLATION ] Q. […] had Cpl. Abel refused to meet with the police, do you think that he would have been subject to Army discipline? A. No, because it wasn’t... there was nothing... how can I put it, we were not aware of any legal or court proceeding at that point.

As far as I was concerned, it was a voluntary statement, he was going to help a friend, so it was... there, it was... a good deed that he was going to do. [70] For his part, the sergeant, who was aware of the reasons for the meeting, had had only a very brief telephone contact with the appellant during which he informed him that the police wanted to interview him on a voluntary basis and he was not under arrest.

According to the sergeant, the appellant did not really ask any questions and did not voice any refusal: [ TRANSLATION ] I explained on the telephone that no, it was free and voluntary, that the SQ wanted to meet with him, that he was not under arrest at that time. [71] In sum, if the appellant was under the impression that he had to cooperate, he could only have come to that conclusion on a subjective basis. However, [ TRANSLATION ] “ the test cannot be purely subjective,” as this Court pointed out in Léo c. R. , 2017 QCCA 2042 , para. 20 .

I therefore see no error when the judge wrote: [ TRANSLATION ] [149] As noted earlier, the Court does not accept Mr. Abel’s version when he states that he felt obliged to cooperate with the police because of his military status. A reasonable person in the same circumstances as the accused would have distinguished between his military status and the exercise of his constitutional rights. The Court had the benefit of seeing the accused testify. This is a person who works as a computer specialist in the Armed Forces; he is very articulate, talkative and able to make informed decisions.

Accordingly, when he decided to remain in the presence of the investigator and answer his questions, he did so with full knowledge. He was free to move about and was able to make informed choices. Mr. Belley, the investigator, did not resort to tricks or ruses. On the contrary, he was respectful of Mr. Abel’s constitutional rights. In fact, Mr. Belley was candid; he did not conceal the significance of the offences for which the accused was being investigated. The accused was aware of the risk. After Mr. Abel exercised his right to counsel, Mr.

Belley informed him that he could indeed leave, but that he wanted to explain his investigation to him and he had to complete certain formalities, which he in fact did when the form concerning the caution and the right to counsel was signed at 10:00 a.m. [72] It was shown beyond a reasonable doubt that the statement was given freely and voluntarily, since the appellant was fully aware of what he was doing.

That is essentially the appropriate test, and thus the statement was admissible in evidence. [73] In addition, the evidence is crystal clear: as the judge found, the appellant was not detained, not even “psychologically”, until his arrest at 11:06 a.m., although he was still informed of his right to counsel and had exercised it well before. He was again informed of that right at the time of arrest, and he exercised the right yet again. There was therefore no infringement of the right to counsel guaranteed by s. 10(

b) of the Canadian Charter of Rights and Freedoms . In the circumstances, everything suggests that the appellant clearly understood his right to remain silent, his right not to talk to the police. As the Supreme Court pointed out in R. v. Singh , 2007 SCC 48 , [2007] 3 S.C.R. 405 : [33] … if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished.

Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor to consider in answering the ultimate question of voluntariness. [74] The appellant also submits that the police should have allowed him to communicate with a lawyer again during the interrogation because the circumstances had changed. I would point out that for issues relating to rights guaranteed by the Canadian Charter of Rights and Freedoms , the onus is on applicant to show, on a balance of probabilities, that his rights have been violated. He has failed in this regard.

[75] To support his argument that he was entitled to a new consultation with a lawyer, the appellant particularly emphasized the following three aspects of the police investigation that was continuing during this time: the discovery of computer files containing child pornography, the discovery of drawings that might constitute child pornography, and the discovery of information suggesting that he might have committed incest.

He made twice made a request for additional access to a lawyer, which was denied. [76] When a detainee has exercised their right to counsel, “the police are entitled to begin eliciting evidence and it is only under exceptional circumstances that they are obligated to provide an additional opportunity to receive legal advice”: R. v. Dussault , 2022 SCC 16 , para. 34 . [77] Although these are not exhaustive, R. v.

Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310 , para. 2 , describes three cases that require a new access to a lawyer: “new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient.” [78] However, a note of caution is in order: “The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10 (

b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct”: Sinclair , supra , para. 57 and “the gradual revelation to the detainee of the evidence that incriminates him does not, without more, does not give rise under s. 10 (

b) to a renewed right to consult with counsel”: R. v. McCrimmon , 2010 SCC 36 , [2010] 2 S.C.R. 402 , para. 23 . [79] However, this does not apply if the new developments that are brought to the accused’s attention suggest that they may be disoriented as to their right to remain silent.

The court must then consider whether the confusion experienced by the detainee affected their ability to understand that they had the right to remain silent: Martin Vauclair and Tristan Desjardins, Traité général de preuve et de procédure pénales, 29th edition, Montréal, Yvon Blais, 2022, p. 958, para. 38.123.2. [80] I will now consider the applicant’s two applications for additional access to a lawyer. [81] I will first address the issue of incest, the discovery of which by the police, according to him, constituted one of the significant changes that authorizes renewed consultation with a lawyer.

That is not the case. [82] The police officer explained the situation in the voir dire cross-examination: [ TRANSLATION ] Q. Now, the information on Facebook, that there had possibly been incest, did you have that for a long time? … A. It isn’t really incest, Your Honour, because it was more... uh...of exhibitionism, voyeurism, between a brother and sister, but... uh... it was on a kind of... of forum, then a certain Mr. [...], aged 19, said, in English, that... uh... he would watch his sister when she came out of the shower, “n” vice versa. So I tried to verify with Mr. Abel whether those lines were his; Mr.

Abel told me that they were not. [83] The matter went no further. The incident does not have the importance ascribed to it by the appellant. [84] The judge held that in the circumstances, the appellant could not demand an additional consultation: [ TRANSLATION ] [158] The Court is of the opinion that both at around 3:54 p.m. and at around 4:24 p.m. when Mr. Abel again asked to speak with a lawyer, there were no new facts that had arisen during the investigation that indicated that Mr. Abel was disoriented or confused

regarding his choices and his right to remain silent. [159] The video recording of the interrogation reveals Mr. Abel’s state and behaviour. When the circumstances from the video recording of the interrogation are viewed as a whole, it is clear that the accused understood his right to silence. Mr. Belley, the investigator, did not put any pressure on him. He was methodical, and when he received information from the ongoing investigation, he conveyed it to Mr. Abel, who reacted, cooperated and admitted his involvement.

The investigator did not rely on any ploy or highly developed interrogation technique to extract admissions. [160] In the video recording of interrogation, we can see that Mr. Abel was nervous, but as the interrogation went on, he was increasingly talkative. He cooperated and readily answered the investigator’s questions. [161] The Court finds that on the two occasions that Mr.

Abel wanted to speak to a lawyer, there was no change at that moment that called for a new caution and the constitutional duty to again contact a lawyer. [85] I agree. [86] At the time of the first request, there had not been any significant change in the circumstances nor any aggravation of the jeopardy facing the appellant which could have made the advice received no longer sufficient or valid.

All we can see is that the appellant is tired and is pondering [ TRANSLATION ]: “this is getting heavy, [....] Yes, it’s tiring me out, but am tired of hearing about this, since this morning.” So there was no reason that required renewed communication with a lawyer . [87] At about 4:24 p.m., the appellant was informed that during the search, the police had discovered files containing child pornography. He asked whether he could speak to a lawyer again. [88] As we have seen, the gradual disclosure of evidence does not, by itself, renew the right to consult a lawyer.

This was not a significant change in circumstances, whether in the investigation or in the jeopardy facing the appellant. He knew the reasons for his arrest and that there had been a search in his house; the discovery of child pornography on his computer equipment merely confirmed the reasons why he had been arrested. It was not a change in circumstances; it was the expected continuation of the investigation. [89] As to whether the confusion experienced by the appellant might have affected his ability to understand that he had the right to remain silent, there is nothing that can support that proposition.

While the appellant might have appeared, for a moment, to be a bit confused regarding his right to remain silent, the police officer reminded him twice that he did have that right and never disparaged the legal advice that the appellant had received. [90] Regarding the discovery of drawings that might constitute the production of child pornography, such a circumstance did not constitute a change, since that discovery did not represent “a new and more serious turn” for the investigation: Sinclair , supra , para. 51 .

Indeed, drawings can hardly constitute a more serious circumstance than photographs and videos involving children, even if it is a different offence, that is, the production of child pornography.

Also, as the judge noted, it is an offence for which [ TRANSLATION ] “the minimum and maximum sentences are identical to the sentences for distribution [and] the moral culpability for the two latter offences is of similar gravity.” [91] Finally, although this is not determinative, the fact remains that the production charge based on the drawings was subsequently withdrawn. [92] I am therefore of the opinion that this ground of appeal must fail. [93] As to the issue of incest, I will get back to it in the following section.

INSTRUCTIONS TO THE JURY [94] As the defendant argued, the instructions were indeed lengthy and sometimes repetitive, but that does not constitute an error in itself.

They do not contain errors that might lead to the conclusion that they were unfair. [95] Therefore, contrary to the appellant’s argument that the judge failed to [ TRANSLATION ] “discuss a number of principles, particularly the presumption of innocence,” he did discuss them, both in his introductory instructions and in his final instructions: [ TRANSLATION ] Introductory instructions Jean-Baptiste Abel has pleaded not guilty; he is presumed to be innocent of the offences with which he is charged. The presumption of innocence applies throughout the trial.

It only ceases to apply if, at the end of the trial and having regard to the evidence as a whole, the Crown convinces you beyond a reasonable doubt that Jean-Baptiste Abel is guilty of the offences with which he is charged. Because of the presumption of innocence, Jean-Baptiste Abel is never required to testify, to submit evidence or to prove anything; the Crown has the burden of proving the guilt of the accused beyond a reasonable doubt. If the Crown does not convince you of his guilt beyond a reasonable doubt, you must find Jean-Baptiste Abel not guilty of the offence charged.

The principle of proof beyond a reasonable doubt is an essential component of the presumption of innocence. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice; rather, it is based on reason and common sense and may be based not only on what the evidence has revealed to you, but also on what it does not reveal to you. If you believe that Jean-Baptiste Abel is probably guilty or likely guilty, that is not sufficient. In that case, you must acquit him because the Crown has failed to convince you of the guilt of the accused beyond a reasonable doubt.

Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Final instructions [ translation ] The presumption of innocence applies throughout the trial. It only ceases to apply if, at the end of the trial and considering the evidence as a whole, the Crown has convinced you beyond a reasonable doubt that the accused is guilty of the offences with which he is charged. Jean-Baptiste Abel is not required to submit evidence or to prove anything in this case. He is not required to prove that he is innocent of the offences with which he is charged.

From the beginning until the end, it is the Crown that must prove the guilt of the accused beyond a reasonable doubt. You must find Jean-Baptiste Abel not guilty of the offences unless the Crown has convinced you of his guilt beyond a reasonable doubt. The principle of proof beyond a reasonable doubt is an essential component of the presumption of innocence. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice; rather, it is based on reason and common sense. It may be based not only on the evidence, but also on the absence of evidence.

It is a doubt relating to an essential element of an offence charged. If you believe that Jean-Baptiste Abel is probably guilty or likely guilty, that is not sufficient. In such a case, you must acquit him because the Crown has failed to convince you of the guilt of the accused beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Crown must prove the essential elements of the offences charged beyond a reasonable doubt, and I will define those elements for you.

However, you must also know that it is almost impossible to prove everything with an absolute certainty. The Crown is not required to do that; that degree of proof does not exist in criminal law. If at the end of the trial, and after assessing the evidence as a whole, you are not sure that Jean-Baptiste Abel committed an offence, you must acquit him of that offence.

If, at the end of the trial and based on the evidence as a whole, you are sure that Jean-Baptiste Abel committed an offence, you must find him guilty of that offence. [96] The appellant also submits that the judge did not sufficiently explain the difference between not knowing that there was child pornography material in the computers and not remembering it , since that distinction was crucial to the defence presented by the appellant. Indeed, he argued that he did not know that the computer equipment contained or had contained child pornography.

[97] However, in the judge’s

summary of the defence’s case, he clearly explained that the appellant’s theory was that the relevant files might have been hidden by the previous owners from whom he bought the computer equipment.

For example, the judge stated that the appellant had explained [ TRANSLATION ] “that he had no knowledge” whereas, for the mobile telephone that he had acquired at the beginning of the summer, [ translation ] “there was no reason to suspect, upon examination, that it had already contained pornography.” He also raised the possibility of innocent possession of child pornography, without having the required knowledge: [ TRANSLATION ] A person can inadvertently acquire or download material constituting child pornography, without knowing that the material is on the devices.

A person can also be in possession of that material only to destroy it immediately or to get rid of it permanently. That is to say, a person can be in possession of material constituting child pornography without having the intent of possessing the material for a criminal purpose. For example, if a person randomly or involuntarily comes across upon files constituting child pornography, recognizes the nature of the files and immediately takes steps to delete the material or get rid of it, they will not have the requisite intent for the purpose of possession.

They will have assumed control of the material for the limited purpose of getting rid of it immediately or no longer having it under their control. This is what is called innocent possession. [,,,] [98] The judge then cited numerous passages of the appellant’s version and submissions in relation to this theory of innocent possession. The judge did not have to make any additional distinction, particularly because the appellant, in his video statement, never said that he did not know that there was or had been child pornography hidden in his computer equipment.

Rather, he said, three times, that he no longer recalled having hidden the files. For example: [ TRANSLATION ] JEAN-BAPTISTE ABEL: Well, I hid it well because I didn’t even remember that it was there. INVESTIGATOR: But were you able to go and find it yourself?

JEAN-BAPTISTE ABEL: Yes. [99] Concerning the submission that the judge erroneously repeated, on several [ TRANSLATION ] “occasions that thumbnails from deleted files were recovered by the investigators” whereas there was no evidence that [ translation ] “those files had previously existed and had been deleted,” the appellant was not completely wrong, since that is not the exact meaning of the expert’s testimony.

In my opinion, that error did not cause the appellant any harm given the reasons below. [100] In his testimony, the expert explained that a thumbnail is created each time an image is downloaded, but that a thumbnail could also be downloaded on its own, with no original file. However, he pointed out that a thumbnail is still a file, a miniature image. Thumbnails constituting child pornography were found in the internal memory of the mobile telephone.

Images representing child pornography (photographs and videos) were also found in the unallocated space on the SD card, that is, images that had been deleted, and it is true that the expert had not verified whether the images found in the unallocated space matched the thumbnails. [101] However, the error in the factual narrative is not significant and could not have misled the jury, since, even if the thumbnails were not paired to images, the fact remains that they were found in the internal memory of the appellant’s phone and the deleted images depicting child pornography were found in the unallocated space on the SD card.

That evidence is just as incriminating.

[102] Moreover, it is wrong to claim, as was mentioned in the appellant’s written submissions, that the defence [ TRANSLATION ] “expressly had the witness say that it may be quite possible to have downloaded thumbnails when looking at a web page, but without the appellant having gone beyond that.” Rather, the witness said that a thumbnail is generated when a photo is downloaded: [ TRANSLATION ] Q. Okay. Now, when I view the page, does the system not send me a thumbnail so I can get to the news or something like that? R. Well, in fact, you would have to download the actual photograph. Q. Okay. R.

If you download the photograph and since the photograph has been processed in the phone, it is then that a thumbnail will be generated. [103] In sum, the minor error made in describing the technical evidence cannot have caused the appellant any harm. [104] The appellant also submits that the judge failed to tell [ translation ] “the jury that the questions in the interrogation of the appellant/accused are not evidence.” However, when the appellant’s the video statement was being listened to, the following instruction was given: [ TRANSLATION ] The accused with the investigator in the case, the investigator asks questions, the accused answers the questions, so a witness’ answers to the questions put to them are part of the evidence.

The questions, however, do not constitute evidence, unless the witness agrees with what is being asked. [105] That instruction, combined with the final instructions that recall that a question does not constitute evidence unless the witness agrees with it, is sufficient. [106] Finally, it cannot be said that the judge failed to address the appellant’s defence. On the contrary, in his final instructions, he addressed the defence of innocent possession at length and correctly explained to the jurors when and how they had to consider that defence.

He also recalled several times the explanations given by the appellant in his testimony to justify the incriminating answers he gave in his video statement. The judge did point out that the appellant knew how to hide, retrieve and delete computer files, which the appellant criticized him for doing repeatedly.

However, it must be recalled that the appellant is a computer specialist, and, in fact, knows how to do those things, as he in fact mentioned in his out-of-court statement: [ TRANSLATION ] INVESTIGATOR The guys, shortly after I stepped out, I knew that the guys had found an external hard drive that was on a shelf. […] That’s what the guys found child pornography in. … JEAN-BAPTISTE ABEL It hadn’t been deleted? INVESTIGATOR

No, and there were some that had not been deleted. There were some that had been deleted, but there were some that had not been deleted. […] JEAN-BAPTISTE ABEL I thought they had all been deleted. ... I could not remember that there were some left. [107] The judge could therefore legitimately tell the jury that the appellant knew how to hide or delete a file. [108] For these reasons, I propose that the Court dismiss the appeal. FRANÇOIS DOYON, J.A.