R. v. K. (T.), 2014 MBCA 97

Citation: R. v. K. (T.), 2014 MBCA 97 Date: 20141023 Docket: AR 14-30-08152 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : ) S. A. Inness HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent - and - ) ) ) Appeal heard: K. (T. L. W.) ) September 17, 2014 ) (Accused) Appellant ) Judgment delivered: ) October 23, 2014 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). CAMERON J.A. [ 1 ] The accused appeals his conviction for possession of child pornography on the basis that the evidence found on a computer seized from his parents’ house should have been excluded from his trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ) as it was obtained in breach of his s. 8 Charter right to be free from an unreasonable search or seizure.

He also appeals on the basis that the trial judge misapprehended the evidence upon which he relied to find that the accused had the requisite knowledge to be in possession of the pornographic material. [ 2 ] For the reasons that follow, I find that the search and seizure of the accused’s computer was not conducted in violation of s. 8 of the Charter , nor did the misapprehension of the evidence materially affect the reasonableness of the verdict. [ 3 ] Regarding the first ground, the computer was searched pursuant to a search warrant obtained by police in response to statements received from the accused’s girlfriend (the girlfriend) and a friend of hers.

The girlfriend discovered what she believed to be child pornography when she was working on the accused’s family’s computer under his user name. The impugned material was downloaded during a time when she and the accused were housesitting at his parent’s residence. After viewing the material, the girlfriend enlisted her friend to view it to confirm that it was child pornography. [ 4 ] The resultant Information to Obtain a Search Warrant (ITO) of Constable James of the Brandon Police Service described the images viewed by the girlfriend.

It stated: The pictures were of various girls in lingerie in what [the girlfriend] described as seductive or sexual poses. In some of the pictures nipples could be seen through the lace clothing. In the video the girls appear to be doing a strip tease while rubbing their own buttocks. The girls in the photographs and videos are described as being between six and seven years of age. [ 5 ] The ITO then provided the names of the files viewed by the girlfriend and her recording of when they were downloaded. One of the files was titled “French nudist colony junior.”

[6] The ITO then stipulated that the girlfriend’s friend also saw the images and that “she would consider thempornographic due to the sexual nature of the posing and the fact that the children were wearing lingerie.” [7] The accused argues that the ITO was insufficient in that there was no evidentiary basis for the issuing justice toconclude that the images viewed amounted to child pornography as defined in s. 163.1(1) of the Criminal Code (the Code) as opposed to“collateral images.” In the forensic report of Cst.

Shewchuk of the Brandon Police Service, which was entered as an exhibit at the trial,the concept of collateral and consistent imagery, in the context of this case, was referred to and defined by Cst. Shewchuk as follows: Collateral and consistent Imagery There is a vast amount of images contained on this hard drive where the images/videos of the children are posed but clothed and thuscategorized as “child other”. This would include children, in this case prepubescent females, posing suggestively or “erotically” incostumes, underwear, bikinis, gymnastics suits, etc.

Often these types of internet websites refer to themselves as “modeling” sites. These photos and videos are produced in existence on the fringe of legality. This website gallery material is laced with sexualconnotations with examples being “Dashamodels.com”, “Tinymodel.com” and “vladmodels.ru” all of which are present within the folderstructure of this exhibit. [emphasis added] [8] In declining to find a s. 8 Charter breach, the trial judge (who was also the reviewing judge) properly applied thestandard of review as stated in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1452.

That is, the reviewing judge cannotsubstitute his or her decision for that of the authorizing judge and must not interfere if, based on the record as amplified by oral or writtenevidence, the authorizing judge could have granted the authorization. In this court, short of a legal error or any palpable and overridingerror regarding the facts and the evidence referred to in the reviewing judge’s analysis, the decision is to be accorded deference. See R.v.

Henderson (W.E.), 2012 MBCA 93 at paras. 70-72, 284 Man.R. (2d) 164. [9] The trial judge held that the descriptions of what was observed by the girlfriend and her friend were sufficient toconstitute reasonable grounds to believe that evidence of the offence of possession of child pornography would be found on thecomputer. He stated that, although the images as described by the girlfriend might not result in a conviction, they would nonetheless berelevant to the allegations in question. [10] I agree with the trial judge.

While the images described by the girlfriend ultimately may or may not have led to aconviction for possession of child pornography under the Code, in my view, they constituted a sufficient basis for the issuing justice tohave concluded that there were reasonable and probable grounds to believe that the accused was in possession of child pornography andthat evidence with respect to that offence would be found on the computer. [11] Unlike this case, the cases relied on by the accused held that the ITOs did not contain sufficient evidence because therewas no description of the allegedly pornographic images or information on whether they had been downloaded (see R. v.

Morelli, 2010SCC 8, [2010] 1 S.C.R. 253), or no evidence that child pornography would be located somewhere in the accused’s residence based onexpert evidence that, in general, pedophiles collect such images (see R. v. Fawthrop (L.) (2002), (ON CA), 161O.A.C. 350). [12] In my view, the accused has not met the standard required to permit appellate intervention as to the sufficiency of theinformation underpinning the ITO. [13] Before leaving the issue of the sufficiency of the search warrant, I would just add one comment.

In determining that theinformation provided by the girlfriend and her friend was reliable, the trial judge appeared to have accepted the argument made by theCrown (who was not the Crown counsel at this hearing) that a distinction should be drawn between information received from witnessesand that from unnamed informants in the court’s assessment of the reliability of the information provided in support of the request for asearch warrant.

The argument is that, in this case, because the girlfriend and her friend were witnesses and not unnamed informants, theinformation that they provided was more credible thereby leading to a finding that the information was reliable. I disagree. [14] James A.

Fontana & David Keeshan, The Law of Search and Seizure in Canada, 8th ed. (Markham: LexisNexisCanada Inc., 2010) neatly summarize the law regarding reliability (at p. 156): Whether an informer’s identity is known, or not, and whether that identity is confidential or not, the information provided by theinformer should, in the totality of the circumstances, contribute to the conclusion that there are reasonable grounds to issue a searchwarrant. As stated in R. v. Trottier [[1996] 4 C.C.C. 321 (Que. C.A.)] and R. v. Solloway Mills & Co. [(1930), (ABCA), 53 C.C.C. 261 (Alta.

C.A.)], the court is primarily concerned with the existence of reasonable grounds rather than with sources. …. [15] Thus, to the extent that the trial judge relied on the premise that a named source was necessarily more reliable than an

unnamed source, he was in error. [16] Despite the above error, the trial judge also correctly held that the information was reliable based on other factors suchas the first-hand, detailed nature of it and, importantly, that the information provided by the girlfriend was corroborated by her friend ona number of important and relevant issues. Cross-corroboration of sources is a factor enhancing reliability and, therefore, enhancingreasonable grounds for belief. See R. v. Saunders (G.T.), 2003 NLCA 63 at para. 15, 232 Nfld. & P.E.I.R. 22, aff’d 2004 SCC 70,[2004] 3 S.C.R. 505.

Therefore, I would not disturb his finding that the information relied on for the issuance of a search warrant wassufficiently reliable. [17] With respect to the accused’s argument that misapprehension of evidence affected the reasonableness of the verdict, itmust be pointed out that thousands of images of prepubescent females were found in three separate folders downloaded to the computer. The girlfriend was only aware of two of the folders.

She testified that, after she confronted the accused about the images, she observedhim deleting files and/or folders from the computer but, despite his efforts, he was unable to delete one folder. Based on the fact that theforensic evidence confirmed that, at the relevant time, one of the folders observed by the girlfriend had been deleted and that the otherfolder had been accessed, the trial judge accepted her evidence in this regard.

In my view, there is no reason to interfere with thiscredibility finding. [18] The forensic evidence showed that a folder containing child pornography was downloaded the night after the girlfriendhad observed the images on the computer. This third folder was unknown to the girlfriend and not accessed by her. [19] Of the thousands of images located on the computer, the majority were classified by the investigating officer ascollateral images. However, the accused admitted that 140 of the images constituted child pornography as defined in the Code.

Theseimages were found in the folder that had been accessed (but not deleted) at the time the girlfriend saw the accused deleting items fromthe computer, and in the third folder. The most serious and graphic images were found in the third folder. [20] When convicting the accused, the trial judge stated: Whether or not the words child pornography were used, I can think of only one explanation as to why the accused would go to [theaccused’s parent’s residence] after meeting with [the girlfriend] and try to delete the two [folders] on the computer which contained childpornography.

This evidence convinces me beyond a reasonable doubt that the accused, … knew what these [folders] contained and thatthat was child pornography. His actions convince me that he knew the contents were illegal, and that he had to rid them of thecomputer. That, as well, establishes beyond a reasonable doubt that the accused was in possession of child pornography. …. [21] In stating that the accused tried to delete the two folders that contained child pornography, the trial judgemisapprehended the evidence in that the accused attempted to delete only one of the folders that contained child pornography.

The otherfolder, which he successfully deleted, contained only “collateral images.” The accused argues that this misapprehension was material asit caused the trial judge to err in his finding that the only reasonable inference from the finding that he attempted to delete the folders wasthat he had knowledge that they constituted child pornography. He submits that, because he did not delete the third folder containing thefiles with the most serious and graphic images, it can be inferred that he was unaware that that folder contained child pornography.

Further, he argues that, because, in total, there were thousands of “collateral images” and significantly fewer pornographic images in thefolders, an equally rational inference was that the accused believed the folders which he deleted and attempted to delete contained only“collateral images” and not child pornography.

Based on this, he argues that an equally rational explanation for trying to delete thefolders was that he was embarrassed by the “collateral images” and that was why he was trying to delete them. [22] The test for misapprehension of evidence is that “the misapprehension must ‘play an essential part not just in thenarrative of the judgment but “in the reasoning process resulting in a conviction.”’” (R. v. C.L.Y., 2008 SCC 2 at para. 19, [2008] 1S.C.R. 5.) [23] I agree that existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. See R. v.

Griffin,2009 SCC 28 at paras. 33-35, [2009] 2 S.C.R. 42. However, in applying the test, the court ought not to require a standard of proof ofcertainty, such that every potential competing possibility could potentially negate the trial judge’s finding. See R. v. Wu (W.Y.), 2010BCCA 589 at paras. 26-27, 298 B.C.A.C. 84. [24] Furthermore, the accused did not testify. As was stated by this court in R. v.

Oddleifson (J.N.), 2010 MBCA 44 atparas. 25-26, 255 Man.R. (2d) 68, once the Crown has met the burden of demonstrating that the only reasonable or rational inference thatcould be drawn from the proven facts was knowledge and control, it is said the case “cries out for an explanation.” In such cases, it is upto the accused to call evidence or run the risk of failing to provide the trial judge with the evidentiary basis to conclude otherwise. In myview, this was such a case.

The trial judge was entitled to find that, in all of the circumstances and absent an innocent explanation, therewas no reasonable or rational inference to be taken from the evidence that would point to anything but that the accused had knowledgeand possession. See R. v. Cooper, (SCC), [1978] 1 S.C.R. 860 and Griffin. [25] In the end, I would conclude that the misapprehension by the trial judge was not material. It is undisputed that files inone of the folders that the trial judge found that the accused attempted to delete contained child pornography.

Regarding his assertionthat lack of knowledge should be inferred with respect to the third folder based on the fact that the accused did not attempt to delete it, Iwould simply note that it was not one of the folders that the girlfriend observed, and was not the subject of her confrontation with theaccused which resulted in him trying to delete folders. [26] Ultimately, the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably haverendered. See R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. In my view, the test has been met in the circumstances of this case.

[ 27 ] For the above reasons, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.