Her Majesty the Queen - v. -, 2012 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 012 Date: January 5, 2012 Information: 39805702 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Jeffrey Appearing: M. A. Segu For the Crown J. D. Armitage For the Accused JUDGMENT Q. D.

AGNEW , J [ 1 ] Michael Jeffrey is accused of: having in his possession child pornography on September 6, 2007 and October 31, 2007; making child pornography available to others between September 6 and October 31, 2007; and accessing child pornography between October 27 and October 28, 2007. [1] [ 2 ] The accused raises two issues in his defence. With respect to the “make available” charge, he states that he was unaware that the computer program which he used to obtain various videos was also making those videos available to others; thus, he says he

lacked the mens rea for the offence. With respect to the possess and access charges, the accused raises in his defence s. 163.1(6) of the Criminal Code , arguing that he possessed and accessed the child pornography for a legitimate purpose relating to art, and specifically for a novel which he was writing. [ 3 ] In addition, the accused argued that his right to trial within a reasonable time as guaranteed by s. 11(

b) of the Canadian Charter of Rights and Freedoms had been violated. I reserved my decision on that issue to the conclusion of trial, and it forms a part of these reasons. [ 4 ] After providing the factual background, I will address the counts of possessing and accessing child pornography. I will then address the charge of making child pornography available to others, and finally I will address the Charter application with respect to unreasonable delay. Before that, however, I wish to address briefly certain other issues. 1. Miscellaneous issues (

a) Late filing [ 5 ] At the close of trial, at the request of Crown counsel, I directed that written argument be prepared by both parties. I discussed with them an appropriate length of time within which their submissions should be delivered to me. The accused agreed that he would be able to provide his written submissions by November 21, 2011. That did not occur: his submissions were delivered the morning of November 22, 2011, with a cover letter of the same date. [ 6 ] Counsel may be aware that I have in the past refused to review written argument submitted beyond the specified date: see R. v.

Komarnicki , at paragraphs 4 through 14. [2] As indicated in that decision, I am of the view that counsel or their clients do not get to choose whether or not to abide by court-imposed deadlines. Compliance with court orders is not optional. In the event that a party is unable to file a brief within the specified time, the appropriate way to deal with the situation is not simply to file it whenever it is done, but to apply for an extension.

This could be done as simply as filing a cover letter requesting leave to file late, with whatever explanation is appropriate, copied to the other side so they could respond if so inclined. It would of course be up to the judge to determine whether to require a more formal application or sworn evidence. The process must acknowledge that there is no automatic right to an extension of time to comply with a court-imposed time limit. [ 7 ] It is a serious matter not to consider the argument of a party to the case.

The authorities make it clear that “a court is not at liberty to pronounce judgment until counsel have been afforded the opportunity to present argument. This stems from the fundamental principle that a litigant ought not to be deprived of his right to have his case fully heard.” [3] In R. v. Graham , the Alberta Court of Appeal stated that “Failure to grant that opportunity [to present argument] is a fatal omission.” [4] The point that I take from the authorities is that both sides must have the opportunity to present argument. I of course take no issue with that proposition.

In the context of the present discussion, however, the key word is “opportunity”. If a party, given a reasonable opportunity to present argument, does not do so, they are entitled to make that choice: a party may present their case as they think fit, within certain boundaries. [ 8 ] There is, then, a tension between on the one hand the court controlling its process, and on the other hand the parties being entitled to a reasonable opportunity to argue their case. When I set the deadlines for submission of argument, the accused through his counsel did not suggest that the time was insufficient or unreasonable.

When he filed his argument late, there was no accompanying note indicating any reasons why he had been unable to comply with my direction, or indicating that he had found it difficult or impossible to present his case fully within the time I had give, namely almost a month. [ 9 ] In Komarnicki , the accused filed his brief approximately two weeks late, and thus cut roughly in half the amount of time I had given the Crown to file a brief in response. In that sense, the breach of deadline was much more significant than here, where the brief was one day late.

It certainly could be argued that, even if the court can and should refuse to consider briefs which are significantly late, the “breach” in this case was trivial and should be overlooked.

[ 10 ] With all due respect to proponents of such an argument, I disagree. The argument confuses (

a) who decides, with (

b) what factors they should consider. The length of delay would, I agree, be a very significant factor in deciding an application for an extension of time for filing. I have a strong suspicion that I would have granted such an extension to the accused in this case, had he but asked. The problem is that he did not. He took it upon himself to ignore the clear direction of the court as to his responsibilities, and apparently operated on the assumption that he, not the court, could decide when to file his brief.

The issue, therefore, is not whether an extension would have been granted if requested; the issue is that the accused was obliged to make that request and did not. The length of the accused’s delay in filing is a factor in granting an extension; it is not a factor in who gets to decide if an extension is warranted.

The court controls its own process; it is not controlled by counsel. [ 11 ] I consider, therefore, that the accused had a reasonable opportunity to present his argument, an opportunity which for reasons unknown he did not exercise. [ 12 ] I have therefore not considered the defence brief in coming to my judgment. It is still, of course, my responsibility to consider whether or not the Crown has proven the accused’s guilt beyond a reasonable doubt.

Fortunately, defence counsel’s very able cross- examination of Crown witnesses and presentation of his own case was precise and focussed, and made the defence strategy very clear: (1) with respect to the “possess” and “accessing” charges, the accused raises the defence under s. 163.1(6) , and in particular the reference therein to “art” [5] , in the context of research for his trilogy of novels; and (2) with respect to the “make available” charge, there is an issue as to whether or not the accused had the mens rea for the offence: there is evidence that the accused was unaware that the settings on the relevant computer program would allow other persons to download child pornography from his computer.

I will have to assess the charges faced by the accused in light of both of these issues, as well as any other matters which arise on the facts and the law, and then determine whether or not the Crown has proven the guilt of the accused to any, some or all charges beyond a reasonable doubt. I will simply have to do so without the benefit of the accused’s arguments. (

b) Admissions [ 13 ] The accused acknowledges that he was the owner of the computer which was seized by the police and which was searched for child pornography. He also acknowledges that the computer contained child pornography, that he was the person responsible for downloading the child pornography to that computer and that he was in possession of the child pornography on all dates relevant to the charges.

The accused admits that the images and videos on his computer included those of persons under the age of 18 years engaged in explicit sexual activity, that such images and videos constitute child pornography, that he accessed child pornography as alleged, and that the child pornography which was on his computer was available to other computer users on the Internet. (

c) Child pornography [ 14 ] I have reviewed the videos and photographs alleged by the Crown to be child pornography. Of the 28 videos submitted by the Crown, I am satisfied that 18 are unequivocally child pornography as they depict graphic sexual activity with persons who are very clearly substantially under the age of 18, including in one case a baby. In four of the other videos, I believe there could be an issue as to whether or not the persons were under the age of 18. One of the videos could not be made to play. One video, being what appears to be a hidden camera viewing a girl drying after a shower, may not constitute child pornography within the meaning of s. 163.1(1) (

a) of the Criminal Code . Furthermore, the allegations in the charges against the accused specifically refer to “child pornography to wit: computer images and videos of persons under 18 years of age engaged in explicit sexual activity ” (my emphasis). This video clearly does not match that specification.

The remaining four videos were duplicates of four of the videos which are unquestionably child pornography. [ 15 ] Of the photographs presented by the Crown, one unequivocally constitutes child pornography, one is clearly pornographic but the age of the person in question is arguably somewhat unclear, and one image is of a naked girl who is obviously under the age of 18. With respect to the latter, it is not clear that this photograph constitutes child pornography within the meaning of the Criminal Code .

It does not depict explicit sexual activity and it is not obvious that the purpose of the photograph is a sexual one. Again, it does not match the specifics of the charge. [ 16 ] In any event, regardless of the photographs and videos about which argument might be made, there is no doubt but that the accused was in possession of at least eighteen distinct videos and one photograph which constitute child pornography within the meaning of the Criminal Code , and which match the specifics of the charges.

There is equally no doubt but that the accused possessed those videos and that photograph specifically because they constitute child pornography.

2. Facts [ 17 ] As of October 31, 2007 the accused lived with his son Erin Jeffrey. Erin Jeffrey was the original subject of the police’s interest, and was arrested, detained and questioned. He was ultimately released. The accused was also questioned by the police, and was eventually charged with the current offences. [ 18 ] The evidence and the accused’s admissions establish that he deliberately downloaded from the Internet, and retained on his computer, files which constituted child pornography. The files referred to above were found on his computer when it was seized on October 31, 2007.

The files were all quite new, as the hard drive had been re-formatted a few days previously and all programs and files reinstalled. After that occurred, either the child pornography files were reinstalled on the computer from another storage medium or the accused searched out and found them via the Internet. [ 19 ] The evidence establishes that as of September 6, 2007, prior to the hard drive being re-formatted and thus deleting (or at least making unavailable) all computer files on it, the accused’s computer had on it computer files which constituted child pornography.

The evidence of Sergeant Darren Parisien establishes this, since on that date, on what turned out to be the accused’s computer, Sergeant Parisien found files for download over the Internet via a file-sharing program. I find that at least some of those files constituted child pornography of the nature referred to in the charges, based on the testimony of both Sergeant Parisien and the accused. [ 20 ] I am thus satisfied beyond a reasonable doubt that on both September 6 and October 31, 2007, the accused had in his possession, on his personal computer, child pornography of the nature referred to in the charges.

I am also satisfied that at least some of such child pornography was available for others to download from the accused’s computer. Furthermore, the evidence of Sergeant Closson established that at least certain of these files had been opened more than once; that is, that a person operating the computer had viewed some of the child pornography more than once. [ 21 ] The accused admits to the above.

He acknowledges that he deliberately sought out child pornography on the Internet and downloaded it to his computer, the computer seized and examined by the police. [ 22 ] The evidence also indicates that the child pornography files on the computer on September 6 and October 31 were not all the same; that is, that new files had been added after September 6. [ 23 ] Additional facts, specific to each charge, will be given with the analyses of those charges. 3. Possess/access child pornography (

a) Additional facts [ 24 ] The accused testified that he has for many years considered writing a novel, and that after a couple of false starts, in 2005 he began his current work. In 2006, he testified, he arrived at the current stage of the book, where he developed what he referred to as “writer’s block”. At that point, he had completed the first draft of two books of his projected trilogy and was unable to decide how to end the third book. He realized that his projected ending would not suffice and was unable to proceed further.

At that point, which is the current stage of the work, the total manuscript was approximately 700 pages in length. He described it as a first rough draft, and indicated it was still a long way from being publishable. Nonetheless, the accused’s testimony is that between 2005 and 2006, a great deal of writing went on. [ 25 ] The trilogy, tentatively entitled “Mitchel’s Problem” was intended to be loosely autobiographical and to describe the “sad and tragic” life of its protagonist.

[ 26 ] The accused testified that the two previous works he had begun, which do not form part of the current manuscript, were also based on his own experiences, and at least one involved alcohol and drug abuse and sexual issues. He testified that “sex in general has always been an issue in [his] life from a very early age”, and that he had done many things he was ashamed of. He testified that he has “serious sexual compulsions” and obsessions and is under medical care for certain psychiatric conditions, taking four psychoactive drugs for his condition.

He continues to suffer from depression from time to time, and his psychological issues, medication and depression all have an affect on his ability to write. Additionally, these experiences informed his writing. The accused testified quite strongly as to the importance he attaches to personal experience in his writing. [ 27 ] In April or May 2007, the accused testified, he came up with the way to end the book. The problems which his protagonist, Mitchel, had suffered through in his life would be capped by him falling into an obsession with child pornography, an obsession which would be discovered by his son.

This discovery would in essence destroy Mitchel. The book would end with Mitchel coming to some kind of realization about his own nature, possibly with some type of redemption achieved. It was surprising, and noteworthy, that although the accused had considered his concept to be the ending of the book, his ideas with respect to Mitchell’s fall through child pornography were much more clearly developed than his ideas of Mitchell’s redemption thereafter.

The latter were noticeably vague and unformed. [ 28 ] In keeping with his idea of writing from personal experience, the accused decided that he needed to research child pornography. This would mirror his protagonist’s voyage of discovery respecting child pornography. The accused was clear that at no point did he intend to describe in detail either how he had obtained child pornography or any of the child pornography itself.

His research was to give some veracity to the vague statements he intended to use to describe Mitchel’s search for child pornography, and to give the accused the visceral reaction, the shock and horror, of seeing the child pornography himself in order to allow him to convey that same shock and horror in his writing. (

b) The law [ 29 ] The Supreme Court of Canada recently reviewed the defence in s. 163.1(6) extensively in R. v. Katigbak [6] , and laid out a thorough program for analysing a claimed defence. [ 30 ] The first issue which must be addressed is whether the court is left with a reasonable doubt that the accused had, in his or her own mind, a “genuine, good faith reason” for handling child pornography. In order to come within the statutory defence, that reason must fall within one of the enumerated grounds in subsection (6). [7] The court must next evaluate, using the “reasonable person” standard, whether or not there is an objective connection (

a) between the accused’s actions and his or her stated purpose, and (

b) between that stated purpose and one of the activities specified in subsection (6). [8] Consideration must then be given to whether or not, even if the first questions are answered satisfactorily for the accused, the accused’s actions “pose an undue risk of harm to persons under the age of eighteen years”. [9] This last step requires the court to “strike a balance between the importance of freedom of expression and reducing the risk of harm to children”. [10] This balance is found by the court determining whether or not the accused’s activities pose “a significant risk of objectively ascertainable harm” to persons under eighteen. [11] [ 31 ] The Katigbak analysis of a proposed defence under s. 163.1(6) therefore proceeds as follows: (

i) has the accused raised a reasonable doubt that he or she had a genuine, good faith reason for dealing with the child pornography in question in the manner they did? This portion of the test will typically be a question of credibility; (ii) is that reason one of the defensible grounds specified in subsection (6)? This is a question of law. In most cases the answer will be obvious, but there may be some circumstances in which a deeper analysis must be done; (iii) are the accused’s actions objectively connected to his or her stated reason for dealing with the child pornography?

The reasonableness of this connection may well also bear on the credibility of the accused’s claim in step (i), but it is again relevant at this stage; that is, the court could find in the accused’s favour in step (

i) by finding a reasonable doubt, but still find against him or her at this stage by deciding that even though the accused may have considered that there was a valid connection between their actions and their stated purpose, there was in fact no objective connection between them;

(iv) if there is an objective connection between the accused’s actions and their stated purpose, is there an objective connection between that stated purpose and one of the protected activities in subsection (6)? That is, would a reasonable person identify the accused’s purported reason for dealing with child pornography as being one of the protected bases in subsection (6)? This question tests the reasonableness of the accused’s claim under step (ii). Again, that reasonableness may also bear on the credibility of the accused’s assertion regarding step (ii); (

v) if the answers to all of the above are in the accused’s favour, then the court must consider the risk the accused’s actions pose to persons under 18. Firstly, is that risk “significant”? I take this to mean that the risk of harm must at least be more than trivial or passing. Secondly, is that risk “objectively ascertainable”? The risk must be one that a reasonable person would perceive.

The reference to “ascertainable” means that the risk does not have to be clear to the reasonable person based on commonly-available information; rather, “ascertainable” must refer to the ability of the parties to lead evidence as to the risk of harm, to inform the court such that it can make a fully-informed objective assessment of the risk of harm. In some cases, of course, evidence may not be required; in others, it may be of assistance to the court.

It is important to note that, even if the accused raises a reasonable doubt up to the point of this step, if his or her activities fail this final test, the defence fails: if the accused’s actions pose an undue risk to children, then there is no defence available. [12] (

c) Analysis - step one [ 32 ] As outlined above, the first step in the analysis of the defence raised is to decide whether or not the accused has raised a reasonable doubt that he had a genuine, good faith reason for possessing and accessing the child pornography in question. The reason the accused in the present case gave was, to put it shortly, that he was conducting research for his novel. He wanted to be able to write convincingly about Mitchel’s Internet search for child pornography, and what he found.

He wanted to be able to convey the horror it invoked. [ 33 ] This step of the test is factual, and obviously involves testing the accused’s credibility in making his claims. I do not, however, have to believe the accused: he simply has to raise a reasonable doubt. [ 34 ] The accused testified that he believes, and believes from his understanding of the writing experience of other authors, that in order to write convincingly about a subject, it is necessary to personally experience it or research it thoroughly.

In support of this proposition, he offered a couple of undated scraps of paper on which he had written what purport to be quotations from two authors, extolling the virtues of experience. [ 35 ] Notwithstanding the accused’s claim to the contrary, it is trite to say that experience is not necessary to write. There have been untold numbers of murder mysteries written by people who, I venture to guess, have never killed anyone in their lives.

Generations of science fiction writers have written extensively without apparently ever having left the comfort of this gravity well, meeting aliens or travelling back through time. Fantasy and horror writers have managed to fill bookstore shelves with stories of elves, dwarves, zombies and vampires with, one suspects, little personal experience of those creatures. Writers of historical fiction have entertained audiences for centuries without the benefit of having actually lived in the times of which they wrote. [ 36 ] This is not to say that the accused was necessarily insincere in his claim.

He may honestly have believed that his writing would be improved by the experience of viewing child pornography. It does, however, go to his credibility in making that statement: to say that experience is necessary in order to write, when entire forests have been denuded without that alleged necessity being fulfilled, suggests that not only is the statement wrong, but that it is so obviously wrong that it is difficult to accept that the accused managed to convince himself that it would justify an otherwise-illegal activity.

Experience may well be useful to an author; it is clearly not necessary. [ 37 ] In addition to downloading and viewing child pornography, the accused also read articles about child pornography. He did not save any of those articles, nor apparently did he make any notes with respect to them. He similarly did not make any notes with respect to the child pornography which he downloaded. He simply watched at least some of it. Some of it, he watched more than once.

[ 38 ] When the accused’s files were deleted through the re-formatting of his hard drive, one of the first things he did was to search out, save and view more child pornography. This re-formatting occurred on October 22, 2007; by October 31, the accused had back on his computer a total of 28 videos the names of which assert that they contain child pornography; as indicated above, I have found that 22 of them (including duplicates) are unequivocally child pornography. Some of these were videos noted by Sgt.

Parisien as being present on the accused’s computer on September 6, 2007; others were newer, having apparently been located and downloaded by the accused since that date. [ 39 ] The accused testified that the visceral impact of the child pornography, the experiencing of which was one of the purposes of him viewing it, in order to be able to write about it, would be lessened with increased exposure. That is, the more he saw, the less he would feel of the precise feeling he was presumably going to try to capture in his writing.

This did not prevent him, however, from viewing a significant amount of child pornography, some of it more than once, over a period of at least two months. During that period, as far as the evidence discloses, the accused did no writing at all relating to his purported purpose. He made no notes with respect to child pornography or his visceral reactions to it, he did not write anything in the draft of his book about it; indeed, he took no identifiable steps at all in pursuit of his alleged objective.

He testified that he was going to recall his research by memory rather than by notes, yet he also testified that his memory was not reliable. He also testified that he retained the child pornography specifically because he did not make notes regarding it. [ 40 ] It is also noteworthy that when interviewed by the police about the child pornography on the computer seized from his residence, the accused denied all knowledge of it, and denied having downloaded it. He now claims that these statements were untrue; that they were, in a word, lies.

He says that I should now believe him when he tells me his current story. [ 41 ] The accused presented to the court a copy of the manuscript for “Mitchel’s Problem” as part of his evidence. He stated that it came from the backup he had made by emailing it to himself before this matter arose. He is under conditions not to use a computer. He testified that he had obtained the manuscript by having a friend, Mary Anne Zaparaniuk, go into his email account, using his password, and download the file to a disc. His testimony on this entire issue was extremely evasive.

He tried very hard not to give specific answers to questions, claimed not to recall and then remembering under further pressure, and overall was not credible. [ 42 ] It so happened that Ms. Zaparaniuk had testified on behalf of the accused earlier that day. She was at no point asked about this supposed downloading and burning that she had done for the accused. She was recalled after the accused testified, and asked about the events related above.

She had no recollection of any such events, did not know that he had saved his book in his email account, did not know his email account name or password, had never burned a disc for the accused and testified that she would not know how to do so. I found her testimony in this regard to be credible and reliable. [ 43 ] This is obviously detrimental to my view of the accused’s credibility. [ 44 ] There are additional factors which must also be considered in assessing the accused’s credibility. Some of them relate more specifically to the “make available” charge and will be discussed fully there.

I have, however, also assessed them in deciding the credibility of his claim with respect to possessing and accessing child pornography. [ 45 ] In the end, I simply do not believe the accused when he says that he was downloading and viewing child pornography for the purpose of writing his book. His claim lacks credibility. [ 46 ] That is, of course, not the end of the question. The accused is not required to convince me. All he has to do is raise a reasonable doubt. Although not directly on point, I have reminded myself of the test enunciated by the Supreme Court of Canada in R. v.

W. (D.) , [13] as modified by the Saskatchewan Court of Appeal in R. v. McKenzie (P. N.) [14] as a useful

summary of the issue of reasonable doubt: even if I do not believe the accused, even if his evidence does not leave me with a reasonable doubt, even then I must still consider all of the evidence which I do accept and weigh it to decide whether or not I am left with a reasonable doubt that the accused was viewing and possessing child pornography for the purpose of writing his book.

[ 47 ] I have no such doubt. It is conceivable that the accused may have considered the possibility of ending his book in the manner he claims. That is not, I have concluded, the reason he was viewing child pornography at the times specified in the charges.

The Crown, of course, does not have to prove that the accused was doing so for his own gratification or any other specific purpose: if he possessed and accessed the child pornography for any purpose other than one enunciated in s. 163.1(6) , the defence is defeated. [ 48 ] The accused thus fails the very first step of the Katigbak analysis, to raise a reasonable doubt that he had a genuine, good faith reason for having the child pornography. [ 49 ] I will continue with the Katigbak analysis, in the event that a higher court should take issue with my analysis on step one. - step two [ 50 ] The second step of the analysis is whether or not the accused’s reason for having and viewing child pornography is one of the protected grounds specified in s. 163.1(6).

As indicated above, although the accused’s purported reason meets that test, I have found beyond a reasonable doubt that this was not in fact his reason. There being no suggestion at all that any other protected ground might apply, I conclude that the accused fails this step of the test as well. - step three [ 51 ] The third question is whether or not the accused’s actions are objectively connected with the stated reason for possession and access of the child pornography.

As indicated above, the reasonableness of the accused’s actions will often have a bearing both on the credibility of the accused in making the claim under step one, and on whether or not the accused succeeds in step three. I have indicated above, in finding against the accused in step one, various reasons why I did not believe him. Some of those are relevant here. The accused acknowledged that repeated viewing of the child pornography would numb the viewer and lessen the visceral reaction, yet purportedly he wanted to capture that visceral reaction.

He made no notes of his immediate response to viewing the pornography, nor did he write anything in his novel, so any eventual reporting of his visceral reactions would be dulled by repeated viewing and the dimming of memory - a problem which he reported having. Furthermore, his stated belief in the need for personal experience in order to write is, for the reasons outlined above, clearly unreasonable.

His actions in viewing the pornography, therefore, are not objectively related to his stated goal and the accused fails this step as well. - step four [ 52 ] The fourth step of the test is whether there is an objective connection between the accused’s stated purpose and one of the protected grounds in s. 163.1(6); that is, can the accused’s claim that he needed to experience child pornography in order to write about it in his novel be reasonably linked to “art” in the defence section? I think the answer must be “yes”.

The accused’s stated purpose was to enable himself to write better, to create a better piece of writing. I think it clear that “writing better” is linked to “art” in a manner which satisfies this step. - step five [ 53 ] The last step of the Katigbak test is whether or not the accused’s actions pose a risk to persons under 18 years old. This step requires answering three questions. Is the risk more than trivial or passing? Is it objectively ascertainable, that is (1) identifiable by a reasonable person, and (2) is it obvious, known or established in the evidence?

As noted above, if the answer to all three is affirmative, then the defence under s. 163.1(6) fails, notwithstanding the results of the steps to this point. If the accused’s actions pose an undue risk to children, then s. 163.1(6) offers no defence. [ 54 ] The risk which is posed must be examined in light of the facts of each case. In the present matter, for instance, there are

different risks posed by the charges of “accessing child pornography” and “possessing child pornography”. “Accessing” child pornography simply means, in the present case, the act of opening a computer file, either online or on the accused’s own computer, and viewing the contents. “Possessing” child pornography must be considered in light of the manner of that possession as disclosed in the evidence: in this case, the possession was largely in the form of files left in the “shared” folder of the accused’s LimeWire program. [ 55 ] The risk posed by “accessing”, or in other words viewing, child pornography was referred to by the Supreme Court of Canada in R. v.

Sharpe in the following terms: “Explicit sexual photographs and videotapes of children may promote cognitive distortions, fuel fantasies that incite offenders, enable grooming of victims, and may be produced using real children.” [15] In Katigbak , the majority and dissent were divided by the question of whether something more than these “generic” harms must be made out for the harm to be “undue” within the meaning of s. 163.1(6) . [16] Given that these harms can be taken to exist in any situation involving the viewing of child pornography, is something more required to constitute “undue” harm, since otherwise there will always be undue harm and thus Parliament’s presumed intention in creating the defence in s. 163.1(6) would always be defeated?

The majority does not answer this question, save to state that whether or not the risk is “undue” must be assessed in light of the circumstances of each case. [17] [ 56 ] The matter before me could be a case where no additional risk of harm was made out with respect to the “accessing” charge and where, had all other requirements of the defence been met, the defence might well not have been defeated by the “undue risk of harm” test. [ 57 ] The situation is different with respect to the “possession” charge.

As indicated above, the child pornography in the accused’s possession was largely, albeit not entirely, held within the “shared” folder of the LimeWire program on his computer. The implications of this will be more fully explored in the segment of this judgment which deals with the “make available” charge, but for present purposes it is enough to say that virtually anyone in the world with access to a computer and an Internet connection could obtain a copy of almost all of the accused’s child pornography from the accused’s computer.

Additionally, there was virtually no security on the computer itself to prevent someone else from viewing the child pornography on that computer, deliberately or inadvertently, even though the accused acknowledged that other persons besides himself could have access to it. Although the computer was password-protected, it appears that it only required the password when it started up or in certain other circumstances which did not typically occur.

There were no security steps taken with respect to the files themselves, whether to encrypt them, password-protect access to them, or anything else: under normal circumstances, the child pornography on the accused’s computer was left unprotected and available, whether the accused was present or not, whether others were present or not. [ 58 ] This adds an additional element of risk beyond the “generic” or “inherent” level of risk referred to in Katigbak .

The ease with which others could, deliberately or inadvertently, view and perhaps download the accused’s collection of child pornography, thus spreading the inherent risk to persons beyond the accused, raises the level of risk beyond what might otherwise have been considered tolerable under s. 163.1(6) . [ 59 ] Accordingly, even had the accused made out all other aspects of the s. 163.1(6) defence with respect to the “possession” charge, he would not have been able to overcome the “undue risk of harm” test and his defence to this charge would therefore have failed. (

d) Conclusion [ 60 ] Subject to discussion of the accused’s delay application, I would convict the accused on both charges of possessing, as well as the charge of accessing, child pornography. 4. Make available child pornography (

a) Additional facts [ 61 ] This charge arises from the fact that the accused’s computer, connected to the Internet, had available for downloading by anyone with the proper file-sharing software, almost all of the child pornography referred to above. That is, virtually anyone in the

world with an Internet connection and a computer could, with relative ease, have obtained this child pornography from the accused’s computer. [ 62 ] The accused says that he was unaware of this, and did not intend it. Based on the evidence of Sergeant Parisien, with respect to what he found on the accused’s computer by online searching, and the evidence of Sergeant Closson, with respect to what he found through examination of the accused’s computer, I am fully satisfied that the actus reus of the offence is made out. Indeed, the accused did not seriously dispute that fact.

The accused’s defence, rather, is that the Crown has not proven mens rea beyond a reasonable doubt. The accused says that he was unaware that his computer software was configured in such a way as to allow others to obtain any of the child pornography on his computer. If I am left with a reasonable doubt in this regard, the accused is entitled to be found not guilty of this charge.

If I am satisfied beyond a reasonable doubt that he had the necessary mens rea , I will find him guilty. [ 63 ] In order to understand the accused’s defence, it is necessary to understand the intricacies of the software he was using to find and download child pornography. The accused used a program called “LimeWire”. This program is a file-sharing program. That is, its purpose is to allow its users to share files between themselves over the Internet.

Person “A”, interested in offering files to others for their own use, would put those files in a designated folder within the program, called by default the “shared” folder. Any other person in the world with a LimeWire program and Internet access, “B”, could then obtain those files from A’s computer. B would use LimeWire to search for descriptive file names; if such descriptors were found in file names in A’s shared folder, those results would show up in B’s LimeWire program.

B could then choose to download those files from A’s computer, or see what else A was offering to share by viewing the names of all files being shared by A through LimeWire.

In essence, once B has located A’s computer via the initial search, the names of any files which A’s LimeWire program is offering to share become visible to B and available to B for downloading. [ 64 ] The evidence is that this is how, at least in large part, the accused gathered the child pornography found on his computer: by using search terms on LimeWire to locate other computers sharing such material, and then downloading it from them. [ 65 ] The crucial aspect of file-sharing programs such as LimeWire is that their essential nature is, as the terms suggests, the sharing of files between users.

That is, unlike a search engine such as Google, LimeWire does not simply deliver photos or web pages to the user’s computer; LimeWire and similar file-sharing programs link users’ computers to allow them to give and receive copies of files between them. [ 66 ] The accused testified that he did not understand this aspect of LimeWire, that he believed it to be the same as a search engine such as Google, namely that the delivery of videos, etc. was strictly one-way, and did not involve any chance of such material leaving his computer and being provided to anyone else. [ 67 ] His evidence was that LimeWire was originally installed on his computer by either his son, Erin Jeffrey, or Jason Nelson.

As referred to elsewhere in this judgment, Erin Jeffrey died July 31, 2010 and his testimony was not available to me. [ 68 ] Mr. Nelson, a knowledgeable computer user and computer technologist by trade, has known the accused for several years, both socially and through work. He has assisted the accused with his computers, including doing some repairs to them. He could not recall whether or not he had installed any file-sharing program on the accused’s computer, nor if he had changed any settings on any file- sharing program on that computer.

He could not recall whether or not he had re-installed the Windows operating system on the accused’s computer at any point. He considered the accused to have an average level of computer knowledge, by which he indicated that he thought the accused could surf the Internet, download content, use email and take similar actions. (

b) The law [ 69 ] It is of course not the case that the accused must convince me that he lacked the understanding that he was making available for sharing child pornography files via the Internet. Rather, the Crown must prove beyond a reasonable doubt that he had the requisite intent. As indicated in my comments regarding the “possess/access” charges, if I believe the accused, if I do not believe him but he raises a reasonable doubt, or if I do not believe him at all but other evidence raises a reasonable doubt, he is entitled to be acquitted. [ 70 ] The mens rea required for making child pornography available was recently reviewed by the Saskatchewan Court of Appeal

in R. v. Spencer . [18] At one point, the Court of Appeal makes the statement, “. . . the mens rea of the offence of making available child pornography under s. 163.1(3) is satisfied where an accused has downloaded child pornography or otherwise made child pornography available to others via a file sharing program over the Internet.” [19] [ 71 ] Taken in context, however, I do not understand that statement to mean what it baldly states. The Court of Appeal was dealing with a question of whether or not the

section required a positive step, along the lines of advertising, transmitting, selling, etc., to make out the offence, as opposed to simply allowing child pornography to sit in a folder which was open to downloading by other users of the file-sharing software. They concluded that nothing further, no active step, was required. I do not take the quoted statement as meaning that no further mens rea must be proven once child pornography is found in a folder open to downloading by others.

If, for example, an accused was completely ignorant of the fact that child pornography was on their computer at all, it would be unreasonable to suggest that, notwithstanding that ignorance, mens rea was established by the fact of child pornography existing in a downloadable folder; and, notwithstanding the wording of the quotation above, I do not take the Court of Appeal as so stating. [ 72 ] In my respectful opinion, the Court of Appeal instead held that the mens rea for making child pornography available, in the context of a file-sharing program on a computer connected to the Internet, is any of: (

a) actual intention to make child pornography available through that program; (

b) actual knowledge that such program makes such files available to others; or (

c) wilful blindness that the program has the latter effect. [20] (

c) Analysis [ 73 ] From the evidence, I accept that the accused did not have the actual intention to make child pornography available through LimeWire. The more difficult question is whether or not he knew, or was wilfully blind to the fact, that LimeWire was doing so with at least some of the child pornography on his computer.

Again, the accused does not have to convince me of his innocence; rather, the Crown must prove beyond a reasonable doubt that he had the requisite mens rea , whether it be actual knowledge or wilful blindness. [ 74 ] The LimeWire program has a number of indicators which show that, absent some changes, certain files on the user’s computer will be accessible to other LimeWire users on the Internet.

These include: notifications when the program is installed and each time it is started up; visual indicators that show whether or not others are downloading files from the user’s computer at any given moment; a statement at the top of the screen that LimeWire is a file-sharing program. [ 75 ] Against this, the accused says that: he did not install or configure LimeWire; he left the program running, so he would not often be in a position to see any notification given when the program was opened; he did not make any particular note of the download indicators; and that he never thought about what “sharing” meant; that, in

summary, he did not know what a file-sharing program was or how it operated. [ 76 ] The credibility of the accused’s assertions must be examined in light of his knowledge of computers, or lack thereof. Someone with extensive knowledge and experience with computers will be more likely to understand a file-sharing program than would a computer neophyte. I would expect Mr. Nelson, for example, to be aware of the general capabilities and operation of LimeWire and similar programs, and indeed this seems to be so.

I have no difficulty believing that there are some computer users who would be completely unaware of how such a program operated, or what the various indicators meant, or what might be implied by a notification that files were being shared. How experienced a user was the accused? [ 77 ] It appears that the accused first began using computers a number of years ago, when he spent four years doing advertising for a business he identified as “Medi-Chair”. In addition to writing advertising copy, he also did graphic design on computer.

His graphic design skills and associated computer abilities are high enough that he was able to design a cover for “Mitchel’s Problem” that incorporates both a photograph and text, and looks remarkably professional. Oddly, given his background in graphics work, the accused claimed not to understand what was meant by “different formats” in relation to computer files.

[ 78 ] In order to write his novels, the accused located and downloaded a word processing program called “Open Office”. He then testified that he thought that perhaps he had asked his son to do it for him. In any event, there is no evidence that anyone assisted him in learning how to use the program, from which I conclude that however this program arrived on his computer, he was able to teach himself how to operate it sufficiently well that he produced over 650 pages of text, using different typefaces and type sizes.

He was able to save sequential versions of his work on his computer, and to retrieve them as he desired. [ 79 ] The accused conducted online banking, and used email. He played computer games, including downloading and installing them from the Internet. He understood how to attach documents to emails, and realized that he could in essence archive versions of his book by emailing them to himself as attachments, which he did. He obtained an anti-virus program from the Internet, downloaded it and installed it onto Ms. Zaparaniuk’s computer, apparently successfully according to her.

Indeed, she testified that the accused knows “way more about computers than I’ll ever know.” Admittedly, Ms. Zaparaniuk presented herself as having a low degree of computer knowledge, but she uses the computer for Facebook, email and games. Ms. Zaparaniuk, who has known the accused for approximately five years and testified on his behalf, stated that if she had a computer problem she would call the accused, and believed that he would likely be able to assist her. I do not know if her belief is accurate. [ 80 ] Much of the above information came out during cross-examination of the accused.

At various points in the cross- examination, I was left with the very distinct impression that the accused was trying to avoid answering. He became particularly evasive in areas of questioning which looked like they might indicate an ability to use computer programs, or which might in other ways suggest to me that his understanding of LimeWire was likely higher than he was trying to suggest. His memory became hazy. He became reluctant to answer.

His testimony became littered with “I believe,” and “I would have.” [ 81 ] In terms of the LimeWire program itself, the accused testified that he did not find it very complicated to operate. He stated that it was installed by Mr. Nelson, but there is no indication that Mr. Nelson taught him how to use it. Even if he had done so, according the accused, it was approximately two years before he actually used it: presumably any information Mr.

Nelson might have imparted would have been gone, leaving the accused to learn the program on his own. [ 82 ] At one point, the accused located through LimeWire and downloaded a series of 187 photographs of young girls, all clothed and in various poses, which he moved from LimeWire to a folder which he himself created and named “Child Models 2".

That is, he was able to create a new folder, in a different location, and move the downloaded files from their default location under LimeWire into that new folder. [ 83 ] It is clear from the evidence that the accused was able to view the child pornography files not just through the LimeWire program, but also by locating and opening the specific files through Windows Explorer.

As this requires a more detailed knowledge of the computer’s memory system, I take it as evidence that his knowledge of computers is more extensive than he would have me believe. [ 84 ] In addition to the above difficulties are the matters to which I referred with respect to the “possess/access” charges, which of course also bear on the accused’s credibility with respect to the “make available” charge. [ 85 ] In light of the many and varied difficulties I have found with the accused’s evidence, I simply have no confidence in his credibility.

Of course, as indicated above, it is not up to him to convince me; rather, I must decide whether he has raised a reasonable doubt, or if the other evidence raises a reasonable doubt. None of these is the case. I am satisfied beyond a reasonable doubt that either the accused knew that the child pornography in his LimeWire folder was available for downloading by others, or at the very least he would have suspected that this was the case and chose not to find out.

The latter, of course, constitutes wilful blindness and is sufficient for the mens rea of the offence, as set out in Spencer . [ 86 ] I should mention in passing that I did not find particularly persuasive the fact that the settings on LimeWire had been changed. The Crown argued strongly that this indicated a considerable level of computer expertise. However, as I am left with some uncertainty as to who changed those settings, I have drawn no conclusions as a result of them. (

d) Conclusion

[ 87 ] Accordingly, subject to discussion of the accused’s delay application, I would convict the accused on the charge of making available child pornography. 5. Delay application - Charter, s. 11(b) [ 88 ] The trial of this matter was commenced December 21, 2010. It was adjourned to October 25, 2011. During the interim, the defence brought an application for a judicial stay on the basis of a violation of the accused’s rights under s. 11(

b) of the Canadian Charter of Rights and Freedoms . [21] [ 89 ] Evidence on the application was provided both by affidavit and viva voce . At the conclusion of evidence, I advised counsel that I would be reserving my decision until the conclusion of the trial. Whether or not the accused has suffered prejudice from the delay in bringing the matter to trial is a factor which must be considered, and which cannot necessarily be determined until the conclusion of the trial.

Where, as here, the accused alleges that his right to a fair trial has been jeopardized by the delay, it is impossible to determine until that point whether or not such delay has caused prejudice. For example, in the present case the accused alleges that the death of a witness has prejudiced his defence with respect to one particular count. Were I to find him not guilty of that count notwithstanding the absence of this evidence, then obviously his right to a fair trial, in that respect at least, would not have been prejudiced, or at least not irredeemably so. [ 90 ] Consideration of an application under s. 11 (

b) begins with the Supreme Court of Canada’s decisions in R. v. Askov [22] and R. v. Morin [23] . As specified in Morin , the factors to be considered in determining whether or not there has been an unreasonable delay in bringing a case to trial are: (

a) the length of the delay; (

b) waiver of time periods; (

c) the reasons for the delay, including (

i) inherent time requirements of the case; (ii) actions of the accused; (iii) actions of the Crown; (iv) limits on institutional resources, and (

v) other reasons for delay; and (

d) prejudice to the accused. [24] [ 91 ] The accused first appeared in court on these charges on November 27, 2007. The final portion of his trial (not including delivery of this judgment) was concluded on October 27, 2011. This delay, of almost exactly four years, obviously requires review. It is clear from the Supreme Court of Canada’s comments in R. v. Conway that it is the overall length of the delay that determines whether or not s. 11 (

b) has been violated; nonetheless, the individual events which make up that totality must be analysed in order to determine the reasonableness of the total delay. [25]

[ 92 ] Adjournments typically are thought of as being attributable to the Crown, defence or “institutional”, the latter being a delay caused for example by the length of time before a trial or hearing date is available, the absence of a judge due to illness, overbooking of the designated hearing date so that the matter could not proceed, or other reasons for delay which were not due to either the Crown or defence. (

a) November 27, 2007 - June 22, 2009 [ 93 ] The accused first appeared in court on the present charges on November 27, 2007. The matter was adjourned to December 20, 2007, and then again to January 17, 2008. The adjournments of December 20 and January 17 were endorsed “by consent” on the record.

On January 17, 2008, the accused elected to be tried by a Queen’s Bench judge sitting without a jury, and a preliminary hearing was scheduled for October 2, 2008. [ 94 ] It is not unusual or unreasonable for an accused to take some time after first appearance to decide on their course of action, and I am not inclined to assign it any significant weight.

This period has sometimes been referred to as dealing with “intake requirements”, [26] recognizing the fact that after an accused is charged, it will necessarily take some time for them to obtain counsel, review Crown disclosure and make decisions about election and plea. In this case, that time was about 1.5 months. The subsequent delay to the preliminary hearing was institutional delay, although the calculation of that delay is complicated by subsequent events. [ 95 ] On August 13, 2008, the matter was brought forward to accommodate a Crown request for an adjournment of the preliminary hearing.

It was re-scheduled to April 28, 2009, again with the endorsement that it was “by consent”. There is no information before me as to the reason for the Crown’s request. There is also no information to suggest that the consent by the accused, through Mr. Braun, his lawyer during this period, was merely a bowing to the inevitable. As Mr. Braun was not called to testify, I am left with the record and the testimony of the accused, which I will refer to further below. [ 96 ] On September 10, 2008, the matter was again brought forward and the accused re-elected trial in Provincial Court with Mr.

Braun still acting on his behalf. The April 28 date was vacated, and May 26, 27 and 28, 2009 were set instead. This was of course a defence request. [ 97 ] One month after that court appearance, on October 15, 2008, the matter was again brought forward. On this occasion, it was for a Crown request to vacate the May dates and set the trial instead for July 13 to 15, 2009. This adjournment was requested to accommodate Mr. Segu, the Crown counsel who is tasked with prosecuting offences of the type present in this case. Mr.

Segu was not available on the dates set in May. [ 98 ] There the matter remained until shortly before the scheduled trial date. On June 22, 2009, the accused advised the Court that he had discharged Mr. Braun and was seeking Legal Aid. The matter accordingly did not proceed to trial on July 13, 2009. [ 99 ] The question of responsibility for the delay from January 17, 2008 until June 22, 2009 is complicated by the fact that it involves institutional delay, an adjournment at the request of the defence and two adjournments at the request of the Crown.

The institutional delay I consider to be the time from when the preliminary hearing was set, namely January 17, 2008, until the first date for the hearing, namely October 2, 2008, or approximately 8.5 months. That date could not be used at the request of the Crown, which resulted in a delay attributable to the Crown of roughly seven months, to April 28, 2009. The defence then requested an adjournment from that date. Initially, the new date was set for May 26, 2009; however, due to confusion within the Crown’s office Mr. Segu, the assigned prosecutor, was not available then.

Once this was discovered, the May 26 date was adjourned and a new date of July 13, 2009 was chosen. Although the last adjournment of this series was at the request of the Crown, in fact I view it as the responsibility of the accused. Had the lawyer representing the Crown when the May 26 date was chosen been aware of Mr. Segu’s unavailability, the May 26 date would not have been chosen. Once this problem was discovered, both sides appear to have acted with reasonable dispatch to put the matter in the position it should have been in, namely an adjournment to July 13.

I therefore attribute the entire delay from April 28, 2009 to the defence. This period does not, however, extend to the chosen trial date, as other events intervened and the matter was back in court on June 22, 2009. The delay from April 28, 2009 to June 22, 2009 totals roughly two months. [ 100 ] The record indicates that all of the above adjournments were either at the request of the accused or with his consent, expressed

through his counsel, Mr. Braun. The accused testified that he wanted this matter brought to trial as soon as possible, and that he did not instruct Mr. Braun to consent to these adjournments but rather instructed him to seek earlier trial dates. I have some difficulties with the accused’s evidence in this regard. [ 101 ] Firstly, the accused was not at all convincing in his testimony on this issue, being evasive and apparently having difficulties remembering before giving a definitive answer. Even once he decided that he was sure he had told Mr.

Braun to seek earlier trial dates, he was unable to recall any details at all of such instructions, including when he gave them; then he decided that he did in fact recall. His testimony on this issue contained phrases such as, “I did but I don’t know when”, “I’m not sure when”, “I imagine”, “I guess” and “apparently”. Witnesses sometimes have difficulty remembering with precision; a certain amount of this is not unexpected.

I was troubled, on listening to the accused, with the degree to which this difficulty came up in this area, particularly when juxtaposed with his supposed certainty about other aspects of this precise issue. [ 102 ] Secondly, although the accused filed a four-page affidavit in support of his application, nowhere in that affidavit does the accused make any mention of instructing Mr. Braun to seek earlier dates, nor is there any mention that Mr. Braun had consented to any adjournments without the instructions of the accused.

Presumably the accused had ample time in preparing the affidavit to consider and include these obviously-significant facts. [ 103 ] Thirdly, I am very troubled that the accused is making these allegations against a member of the Bar without calling him as a witness. Mr. Braun is an experienced lawyer and certainly no stranger to the criminal defence bar. He is being accused by an erstwhile client of (

a) acting without the client’s instructions in a way which significantly and adversely affected the client, and (

b) failing, at the very least, to carry out the client’s instructions by not attempting to secure an earlier trial date. Yet, notwithstanding that these very serious allegations are being levelled in open court, under oath, Mr. Braun is not present. Mr. Braun may well not even be aware that his former client is making these statements against him. The accused chose not to call Mr. Braun as a witness, although the accused called the other two lawyers who had significant involvement with this matter (the fourth, Mr. Hardy, appeared only once with the accused, at the first appearance).

The accused has chosen not to put Mr. Braun on the stand, to ask him to confirm or deny these allegations, or to explain his actions. I am led inexorably to the conclusion that the accused is concerned that Mr. Braun would not support the accused’s recollection. [ 104 ] For the above reasons, I do not accept the accused’s testimony with respect to consenting to the adjournments.

I find that the court record is an accurate reflection of what occurred, and that the various adjournments noted above were with the consent of the accused. [ 105 ] I leave aside the question of the effect of a consent by the accused’s counsel either in the absence of authority to give such consent or in the face of contrary instructions, since on the facts as I have found them no such issue arises here. [ 106 ] To summarize to June 22, 2009: 1. November 27, 2007 to January 17, 2008 (1.5 months) - intake; 2. January 17, 2008 to October 2, 2008 (8.5 months) - institutional delay; 3.

October 2, 2008 - April 28, 2009 (7 months) - Crown delay; 4. April 28, 2009 - June 22, 2009 (2 months) - defence delay. [ 107 ] As indicated previously, regardless of to which entity a delay is attributed during this period, I find that the accused consented. (

b) June 22, 2009 to December 21, 2010 [ 108 ] As of June 22, 2009, the accused had discharged Mr. Braun and was attempting to obtain representation from Legal Aid. There were some difficulties in him so doing, involving an appeal of Legal Aid’s denial and an arrangement being worked out between the

accused and Legal Aid. It was not until September 2, 2009 that Legal Aid counsel, in the form of Ms. Towstego, appeared on the record for the accused. In the meantime, of course, the July trial dates had been vacated. It then took until November 24, 2009 for trial to be rescheduled, this time for October 4 and 5, 2010. [ 109 ] The trial dates of October 4 and 5 were subsequently vacated due to the illness of the accused’s Legal Aid counsel, who by this time was Ms. Wood. Trial was rescheduled for December 21, 22 and 23, 2010. [ 110 ] The accused urges me to find that this entire period of June 22, 2009 until December 21, 2010 is the fault of the Crown, or perhaps in

part Crown and in

part institutional delay, or in any event not attributable to him in any way. [ 111 ] His argument descends from his reason for seeking Legal Aid. His evidence is that, upon being charged, he sought and obtained the financial backing of his brother. According to the accused, his brother provided $3,000.00 to begin with and promised additional financial support. The brother later, however, retracted this promised support, leaving the accused unable to fund his defence with Mr. Braun. He therefore had to discharge Mr. Braun and seek Legal Aid.

He argues that: (1) if this matter had proceeded as originally scheduled, it would have gone to trial before his brother had to withdraw funding; (2) the delays caused by the Crown caused it not to proceed until after such funding ceased to be available; (3) as a result, the Crown’s delays were the cause of him seeking Legal Aid; (4) every delay attributable to him having to seek Legal Aid is therefore the responsibility of the Crown. [ 112 ] I do not agree with this analysis. There are a number of problems with it. The first problem lies in establishing the accuracy of premises (1) and (2).

The second is the causation stated in sub-conclusion (3), and the third is the reasoning in the conclusion, (4). [ 113 ] Premises (1) and (2) of the argument require that I accept that the Crown’s delays meant that funding was withdrawn before this matter could proceed. I have only the accused’s evidence that any such funding was offered. His brother was not called to testify, nor did he provide an affidavit. This seems odd, on such a crucial point.

I would have expected to hear whether or not the brother had funds available or, if not, what the source of the funds was to be, whether or not there was a maximum (as I would expect there would be - very few people are in the fortunate position of having unlimited resources) and what it was, and what terms if any he was expecting for repayment from the accused for such further amounts. Similarly, I have no information other than from the accused that such funding was subsequently denied, or why. [ 114 ] On the same point, I have no information from Mr.

Braun confirming the accused’s statements, or indicating that he was not prepared to proceed further without funds beyond the initial retainer of $3,000.00. The accused told me that he had received a statement from Mr. Braun indicating that all of the retainer had been used up and requesting more money; that document was never filed, nor any other details provided, including crucially the date it was sent. [ 115 ] Furthermore, the accused testified that he thought it was in early December 2008 that his brother indicated he could provide no further financing.

The accused testified that as a result he instructed Mr. Braun to re-elect trial in Provincial Court, as it would be cheaper than a preliminary hearing and subsequent Queen’s Bench trial. The affidavit filed by the accused, however, states that his brother withdrew his offer of financing in late summer, 2008. The re-election occurred on September 10, 2008, which accords with the statement in the affidavit and not with the accused’s viva voce testimony. According to the affidavit, however, Mr. Braun was not discharged until June, 2009.

I note that this was shortly before the scheduled date for the beginning of the trial, namely July 13, 2009. [ 116 ] Funding, therefore, was withdrawn well before even the first scheduled trial date of May 27, 2009. Indeed, according to the accused he chose to be tried in Provincial Court, and thus that date was chosen, specifically because the promise of funding had been retracted. [ 117 ] The very first preliminary hearing date which had been set, before any adjournments at all, had been October 2, 2008.

However, this is after the brother’s funding was withdrawn, according to the dates in the accused’s affidavit: funding was lost “some time in the late summer of 2008". The very premise of the accused’s argument, that the Crown’s delay meant that funding was lost before this matter could be concluded, is cast into doubt - according to the accused, funding was lost before virtually anything even started. Had the preliminary hearing proceeded as scheduled initially, the accused’s promised funding would still have been lost before the hearing occurred.

Any delay caused by the Crown occurred after the original date for the preliminary hearing.

[ 118 ] I recognize that the accused, in his testimony, stated that he thought it was December, 2008 that his brother said he could not fund the defence. It became clear through the course of his testimony that he was having considerable difficulty with dates.

I regard his affidavit as more reliable in this regard, as it was presumably drafted under calmer circumstances than examination and cross- examination in court, and with time to check records, reflect and revise as needed. [ 119 ] I therefore regard the first two statements, the premises, of the accused’s argument on this point as refuted. [ 120 ] The causation in the sub-conclusion, statement (3) of the argument, namely that the Crown’s delay caused the accused to seek Legal Aid, is doubtful.

As I have indicated above, not all of the delay before the accused sought Legal Aid was attributable to the Crown; a significant portion was attributable to the accused. Further, the fact that funding was apparently lost in late summer 2008 but Mr. Braun not discharged until June of 2009 - less than two months before trial - makes the link between the Crown’s delay and the discharge of Mr.

Braun less than obvious. [ 121 ] Finally, there are difficulties with the reasoning leading to the conclusion, statement (4), the proposition that every delay attributable to the accused having to seek Legal Aid is therefore the responsibility of the Crown. On delay applications, it is commonplace for the matter to have experienced multiple delays, some of which are attributed to one cause, some to another.

The accused’s argument, in essence, is that had this matter proceeded as originally scheduled, it would have concluded and been done; it is the Crown’s fault that it did not; therefore, every delay after when it should have been concluded is the Crown’s fault, since if the Crown had not caused the first delay it would be over and no further delays would be in issue.

Unfortunately for the accused’s argument, that is not the way the courts have treated delay analyses. [ 122 ] The Morin analysis, quoted above, directs courts to consider inter alia the actions of the accused, the actions of the Crown and other reasons for delay in determining the reasonableness of the delay. There is no suggestion that once the court has concluded what the responsibility is for the first delay, the “fault” analysis is over. I am not aware of, nor have counsel directed my attention to, any case in which that proposition was accepted.

Indeed, it is precisely the opposite: analysis is made of all interim delays as part of determining the reasonableness of the total delay; the analysis does not end by deciding that whichever party was responsible for the first delay was, ipso facto , responsible for the total delay thereafter. [ 123 ] To carry the argument to its logical conclusion, on the accused’s analysis it is the institutional delay, not the Crown’s delay, that would be responsible for all delays - it was this Court’s unavailability to hear this matter for the initial 8.5 months that led to all other delays.

For that matter, perhaps it was the accused’s inability to elect for the first 1.5 months that led to all subsequent delays. [ 124 ] As can be seen, I am unconvinced both by the accuracy of the accused’s premises and by the logic of his argument based on those flawed premises. [ 125 ] I consider the delays caused by the accused seeking Legal Aid, the time it took Legal Aid to schedule, and the delay caused by the illness of the accused’s Legal Aid counsel, to be attributable solely to the accused.

These delays lasted from June 22, 2009 to December 21, 2010, a total of 18 months. [ 126 ] I note in any event that, once again, the adjournments through this period were either at the request of the accused through his counsel, or consented to by his counsel. My comments in this regard above with respect to Mr. Braun are equally applicable here, with the added statement that both Legal Aid lawyers testified that they were aware of the Charter implications of consenting to adjournments throughout this period. (

c) December 22, 2010 to October 25, 2011 [ 127 ] On December 21, 2010, trial commenced before me. At the outset of trial, the accused’s lawyer, Ms. Wood, advised that her retainer had been terminated the previous day by the accused.

[ 128 ] The accused then indicated that he wished to apply for a court-appointed lawyer and requested an adjournment for that purpose. Despite my urging, the accused insisted on informing me that he had terminated Ms. Wood’s representation of him because he did not like the advice she was giving him. Ms. Wood had been appointed by Legal Aid to represent the accused. [ 129 ] I advised the accused that while he was entitled to have the public provide him with a lawyer, the public was not obliged to provide him with a lawyer who would tell him what he wanted to hear.

He was not entitled to go lawyer-shopping on the public’s dime until he found a lawyer whose opinions he liked. The public had provided him with a lawyer. His complaints with respect to that lawyer had nothing to do with her competence or preparation, but with the fact that her advice was not what he would like it to be. [ 130 ] It is an unfortunate fact of life that lawyers often have to tell clients information the clients would rather not hear.

Whether it be doubts about the merits of a proposed defence, questions about the credibility of anticipated witnesses, or the likelihood of hoped-for outcomes, it is frequently the sad duty of lawyers to give disappointing advice to clients and it is frequently the sad fate of clients to hear advice other than what they wish. [ 131 ] A client who is paying for their own lawyer is, if they wish to spend their money in such a fashion, entitled to shop around until they find one who tells them what they want to hear. Depending on the circumstances, such a search may be long and expensive.

Provided the client has the time and purse, however, they are entitled to undertake such an odyssey. [ 132 ] Where, however, the purse to pay for such a quest belongs not to the client but to the public, the odyssey may never begin. Within certain limits, an accused is entitled to competent and capable legal representation, funded by the public. The accused in this case has received that benefit from the purse of his fellow citizens. There is no issue about the competence or preparation of Ms. Wood for this trial. I want to be very clear about this as no aspersions should be cast on Ms.

Wood with respect to her involvement in this matter, whether directly, by omission or by innuendo. Ms. Wood is an experienced criminal practitioner who appears frequently before this Court. The evidence presented to me in the hearing of this application satisfies me that she was fully prepared for trial and that she was competent, capable and willing to proceed with trial on December 21. The cause of her dismissal, as the accused insisted on telling me and as was confirmed by Ms. Wood’s testimony, was her opinion as to the likely validity of the defence proposed by the accused. [ 133 ] Ms.

Wood, as was her duty, provided the accused with her opinion as to his legal position, including the likelihood of success of the defence which he wished her to raise on his behalf. She also provided him with her opinion as to other possible resolutions she believed he should consider. [ 134 ] The accused, quite understandably, was less than thrilled to receive the news that his lawyer was not enthusiastic about the prospects for his proposed defence. No doubt he would have been much happier had Ms. Wood been able to tell him that his defence had an excellent chance of success.

However, as that was not in fact her opinion, it would have been highly improper for her to tell him that. In providing him with her honest opinion as to the merits of his defence, and advising him of other possible courses of action he might wish to consider, she was precisely carrying out her professional obligation to him. [ 135 ] He was entitled to be unhappy to hear it. He was entitled to choose not to be represented by a lawyer whose opinion he disliked. He was not, however, entitled to force society to provide him with a lawyer who would tell him what he wanted to hear.

In coming to this decision, I had the benefit of the decision of Gerein C.J.Q.B. in R. v. Umpherville . [27] [ 136 ] Accordingly, I refused the accused’s request for an adjournment to seek another publically-funded lawyer, and required him to proceed with the trial, acting on his own behalf. [ 137 ] At the end of the first day of trial an issue arose which caused me grave concern. The Crown tendered a videotape of an interview between a police officer and the accused relating to these charges. Part way through the interview, the accused indicated that he wished to speak with a lawyer.

The interviewing officer can be seen providing him with a telephone in the interview room and then leaving. I am advised that thereafter, through inadvertence, the audio recording continues. That is, the accused spoke on the telephone with a lawyer with respect to the very charges before me, and the accused’s side of that conversation was recorded by the police.

[ 138 ] When I learned this, it was apparent that there was a potential Charter issue. It was also apparent that the issue was of considerable complexity, and that it would be unreasonable to expect the accused to represent himself in attempting to deal with it. Accordingly, on December 22, 2010 I adjourned the trial to allow the accused to bring an application for a court-appointed lawyer, which I then granted.

His present counsel took up the appointment, and trial was then rescheduled for October 25, 2011. [ 139 ] The accused takes the view that the delay from December 22, 2010 to October 25, 2011 is attributable to the Crown. He bases this on the fact that the delay was the result of the recording of his telephone call by the police, who are agents of the Crown in this regard.

His reasoning is that, had this not occurred, I would not have felt compelled to adjourn the trial on December 22. [ 140 ] While I agree with the accused that his trial might well not have been adjourned had the recording not occurred, I do not accept that this delay was caused by the Crown. Ms. Wood testified that she was aware of the problem and had discussed it with the accused, who was not interested in pursuing a remedy with respect to it. While the accused did not recall this discus

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