Her Majesty the Queen Respondent — v. —, 2013 ONSC 2808

CITATION: R. v. Nanos, 2013 ONSC 2808 PETERBOROUGH COURT FILE NO.: 08-0197 DATE: 20130510 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL BETWEEN: Her Majesty the Queen Respondent — and — Michael Nanos Appellant COUNSEL: Mr. Douglas Peckhover, agent for the appellant Mr. Jim Hughes, counsel for the Crown, respondent HEARD: October 22, 2012 H.K. O’Connell J. REASONS FOR JUDGMENT [1] [1] Mike Nanos was tried at Peterborough on a single count of having in his possession child pornography, contrary tosection 163.1(4) of the Criminal Code. The trial occurred over the span of 3 days. Judgment was rendered on September 04, 2009.Sentencing occurred on October 22, 2009. [2] On January 23, 2012 MacDougall J. granted Mr.

Nanos an extension of time in which to appeal his conviction. At thattime Justice MacDougall allowed Mr. Peckhover to appear as agent for Mr. Nanos. Justice MacDougall rooted his decision in thegranting of leave based on the Supreme Court of Canada’s judgment in R. v. Morelli 2010 SCC 8 , [2010] S.C.J. No. 8.

[ 3 ] Justice MacDougall also permitted Mr. Peckhover to appear for Mr. Nanos on the

summary conviction appeal. He noted that the material filed by Mr. Peckhover on the motion before him was prepared at a professional level; that Mr. Nanos could not afford counsel; and that given the complicated nature of the issues under appeal, that Mr. Peckhover could assist Mr. Nanos on the appeal. [ 4 ] On the appeal heard before me, Mr. Nanos had the assistance of Mr. Peckhover. I made it plain to Mr. Nanos that if he wished to add anything said by his representative or wanted time to confer that he would be more than welcome to do so. Mr. Nanos was very content to have Mr.

Peckhover present his case on appeal. Indeed, he spoke to Mr. Peckhover on occasion during the appellate proceedings. [ 5 ] Given the nature of the material filed and the conduct of the appeal during argument I had no concern that Mr. Nanos was not represented in a concise and professional manner with the assistance of Mr. Peckhover.

Grounds of Appeal [ 6 ] In his Notice of Appeal the appellant argues that the trial judge: 1) Erred in law in finding that the evidence offered by the Crown proved beyond a reasonable doubt that the appellant saw the saw the images of child pornography and then, using a “three step process”, placed them into temporary internet files on the subject computer.

The Trial Judge erred because there was no evidence to support this finding. 2) Erred in law in misapprehending the evidence of the expert witness that all the images of child pornography that he was examined on came from the internet, were cached into temporary internet files by the subject computer’s web browser, Internet Explorer, that there were “infections” on the computer that could place files onto the computer without operator intervention and that child pornography could be downloaded onto someone’s computer without that person’s knowledge. [ 7 ] I will overview the evidence at this juncture before I set out the position of the parties on appeal.

February 20, 2009: Commencement of the Case for the Crown Evidence of Officer Thompson [ 8 ] Constable Scott Thompson of the Ontario Provincial Police was on duty on February 04, 2007. He was dispatched to a residence based on a complaint called in from one Bonnie Scarborough who was concerned about child pornography being found on her computer. Constable Thompson contacted Ms. Scarborough and went to her residence. Ms. Scarborough let the officer in and identified a computer for him.

She willingly gave him the computer. [ 9 ] I pause to note here that no issue was raised at trial alleging any Charter breaches, nor that Ms. Scarborough did not have the right to release it to police. Evidence of Acting Sgt. Maier [ 10 ] Acting Detective Sergeant Tina Maier of the Ontario Provincial Police testified. She works in the child exploitation branch, which is known as Project P. Officer Maier obtained a search warrant on February 27, 2007. The search warrant was for the computer that Officer Thompson had seized. [ 11 ] Examination of the computer was completed on May 01, 2007.

Using a process to categorize content the officer viewed the contents on the computer and found 55 images of what was described as category one material, which is child pornography. The officer prepared a binder of this material. The images that were accessed had a path date, a created date, and an access date. The created date refers to the date that the image is put on the computer. The access date is the last date that somebody looked at the image.

Each image had attached to it this information. [ 12 ] Of the 55 images that were found on the computer and that were child pornography, office Maier testified that “the majority of the images were - there were images of children engaged in sexual acts like performing fellatio, but the majority of images were that - with the focus on the vaginal area of females under the age of 18.” [ 13 ] Another 42 images were of category #2 material which was described as child nudity. This material is not child pornography.

In addition 9,612 images of adult pornography were located. [ 14 ] None of the 55 child pornography category images were movies. All were still images. Evidence of Bonnie Scarborough [ 15 ] Ms. Scarborough testified that on February 04, 2007 she was on the computer at her home. At the time she was in a relationship with the appellant. She clicked on little pictures that were in her captive works files. She was concerned. She viewed the pictures between the time frame of 10 a.m. and 2 p.m. on this date. [ 16 ] As a result of her concern she said to Mr.

Nanos “what the hell’s this shit?” She said he was flabbergasted as she looked at the pictures. She said she looked at between 50 and 60 images. She and Michael agreed that the police should be called. They came

and she gave the officers who attended her home, her computer. [ 17 ] She had had an historical relationship with Mr. Nanos which was rekindled. On February 04, 2007 she and Mr. Nanos were living together. [ 18 ] In order for Ms. Scarborough to open the images that she found she clicked on an icon on her desktop. It in turn opened up to 17 files. She clicked on the third or fourth file “and that’s when the images-the thumbnails popped up.” [ 19 ] The Crown referred to an email account, a Hotmail account, that was used on that computer. She identified Mr. Nanos’ user name for the computer. Both she and Mr.

Nanos were the users of that computer. Mr. Nanos had a password for his account, but unlike her password, it was not saved on the computer. It had to be entered manually. Mr. Nanos’ password was written on a piece of paper. [ 20 ] She was aware that there was adult pornography on the computer, as Mr. Nanos told her and asked if she approved of it. [ 21 ] In relation to the images that concerned her, she had never seen them before on the computer, nor did she download them.

She testified that she had never accessed any pornography sites on her computer. [ 22 ] Only she and Michael had access to the computer on February 04, 2007. She owned the computer from the day that it had been purchased at Future Shop. [ 23 ] Two of her children had used the computer. R.N. her daughter with Mr. Nanos, was on the computer a week before she gave it to the police, and A., her daughter from another relationship, was on the computer in September or October 2006. R.N. was 14 at the time in February 2007 and A. was 16. [ 24 ] She testified that it was Mike Nanos’ idea to call the police.

She said that the password for Mr. Nanos’ email account was taped to the computer desk. Anyone who was using the computer could see it. Evidence of Michael Ryder [ 25 ] He is a civilian employed by the OPP. He is in the electronic crime section. He prepared a report for the trial. The report was marked as Exhibit 2. He set out his protocol for examining the contents of the computer. [ 26 ] The images in issue were obtained from internet browsing when surfing.

The child pornography that was found “was not sent out or shared out from his computer.” The witness found no evidence of any attempt to export the images found on the computer. [ 27 ] The child pornography was principally found in temporary internet files, which are created when one is browsing using Internet Explorer. The bulk of the images that were found were “cached files” that are saved for later use if you wish to revisit the page. [ 28 ] Most of the child pornography was in temporary internet folders. The computer could be accessed without a password. It had 2 messenger accounts.

The one, under the Hotmail account name Park13157 automatically opened up when the computer was on and was connected to the internet. The second Hotmail account, Glowyhandyboy required a password to be entered and was not therefore automatically logged in when the computer was turned on and connected to the internet. [ 29 ] On January 27 2007 the ‘Glowy’ account was logged on between midnight and 1:58 am. For 45 minutes the computer was shut down and a game of Star Craft Brood War was played and two files - mike2.spc and mike.sng were accessed during the game.

After the access was had with these 2 files, pornographic websites were accessed between 6:12 and 7:06 am, which had access to child pornographic images. 36 of the 55 child pornographic images were found during this time frame. The witness identified some of the websites from which the images were obtained. [ 30 ] On February 02, 2007 between the hours of 12:43 and 16:05 hours, the Glowyhandyboy account was accessed which required entry of a password. During this time frame, child pornography was accessed on two occasions.

A total of 22 category 1 and 2 images were accessed from which images were obtained. [ 31 ] The witness prepared a time line of the internet activity for these dates and times when child pornography was accessed. [ 32 ] The Glowyhandyboy account was the only account that the witness could find that needed a password to access. [ 33 ] In the Google desktop the witness found that the Hotmail account ‘Glowyhandyboy’ was associated to the name Michael Nanos. In addition, there was a picture of Michael Nanos. Counsel conceded that it was one and the same Michael Nanos before the court. [ 34 ] Mr.

Ryder could not say who was physically at the keyboard at the time that the accessing of the child pornography websites was undertaken. May 12, 2009: Crown’s Case Continues Evidence of Sgt. Krumins [ 35 ] Sgt. Krumins is a member of the OPP. The officer was on duty February 05, 2007 and took a statement from Ms. Bonnie Scarborough. He also took a statement from Mr. Nanos on December 06, 2007.

[ 36 ] The statement was audio and video recorded at the detachment. There was no issue with its voluntariness. That statement was marked as an exhibit. May 28, 2009: The Case for the Defence Evidence of Michael Nanos [ 37 ] Mr. Nanos testified. He said he was Ms. Scarborough’s partner. Before the date of Bonnie’s discovery of child pornography he had never seen the pornography. He used the computer. Bonnie owned it. He had never used the computer to access child pornography nor to download it. [ 38 ] His daughter R.N. had used the computer on two occasions that he knew of. [ 39 ] Mr.

Nanos agreed that in the statement that he gave to police officer Krumins in December 2007 that he had said that he had downloaded the pictures that were referred to in his statement. [ 40 ] He agreed that he answered ‘yes’ to the officer when it was put to him that he downloaded the images that he did. In his evidence at trial he said that was not true. Mr. Nanos said he was under stress and was simply obliging the officer in his answers, as the officer was not listening to him.

He agreed that he attended at the station to make his statement. [ 41 ] He agreed that his account was Glowyhandyboy, that he plays Starcraft-Broodwar and that he had used the character Mike2.spc. [ 42 ] He totally disagreed with Crown counsel’s suggestion that he was the one signed on to the computer when Mr. Ryder said someone was on using his user name and password, on January 27, 2007. However he did not dispute that what Mr. Ryder found was accurate for that date. [ 43 ] Mr.

Nanos agreed that in one point in his statement he said that he wouldn’t have intentionally downloaded the material, and yet at trial said he definitely didn’t do it as he wasn’t on the computer at the material time.

He agreed that in his statement at one point he allowed for the fact that he might have downloaded the material, but didn’t think it was child pornography. [ 44 ] He agreed that in his statement he acknowledged that he searched for adult pornography and that in the time line provided at trial that the search of adult pornography was in close proximity to when child pornographic images were accessed and downloaded. [ 45 ] He agreed as well that in his statement he allowed for the fact that he may have been the person who did the downloading but if he did he was drinking and doing drugs and did not know what he was doing.

Mr. Nanos agreed that when he was drinking he couldn’t play Broodwar. [ 46 ] Mr. Nanos denied that he accessed the websites that had the child pornographic content, inclusive of lovelyXXXX, pinkXXXX and prettyyoungteenXXXX. [2] [ 47 ] He agreed that it is difficult to download something by accident as it takes about 3 steps to do so.

He agreed that the pictures on the computer as far as he knows were deliberately saved and to do so would require the saver to click on file, press save in the drop down box, then save the material in a place on the computer. [ 48 ] He reiterated however that he was not using the computer when this activity occurred. Evidence of R.N. [ 49 ] She is Michael Nanos and Bonnie Scarborough’s daughter. She was in foster care at the time of the trial and was in 2007. [ 50 ] She used this computer in early 2007. She accessed adult pornography but did not know via which account.

She accessed the pornography a couple of times. She said that child pornography had popped up on the computer when she was using it. [ 51 ] She never searched for nor downloaded any child pornography. She never told her parents about seeing child pornography on the computer.

She was shown and identified a letter that she wrote in May 2008. [ 52 ] She agreed that she provided a statement to Officer Krumins in July 2008, wherein she told him that she had downloaded the material. [ 53 ] She testified that she never downloaded (saved) child pornography, nor did she save anything that she saw once in a pop up box. [ 54 ] She identified her email accounts that she used to access the internet. She agreed that she told the officer in her statement that she saw the pop ups in the summertime.

She testified that she did not have a good memory. [ 55 ] She agreed that when she gave her statement to the officer she was relaying that she was responsible for the child pornography on the computer, but then called the officer a few weeks later to say that she didn’t do it. [ 56 ] She said that she made the call that she did to Officer Krumins on August 06, because she had memory flashbacks. To

quote R.N., “I have to think really hard to get memories to come back up so that I can remember things. So, sometimes I do remember,sometimes I don’t.” The Appellant’s Argument [57] In his oral submissions for Mr. Nanos, Mr. Peckhover relied upon the appellant’s factum, authorities and the appellant’sreply to the respondent’s factum. [58] It was argued that the trial judge erred in holding that the appellant was in possession of the impugned material.

Therewas, says the appellant, no evidence of a three step process to save the images of child pornography. [59] The appellant referenced the majority judgment of Fish J.A. in R. v. Morelli wherein his Lordship stated: On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While thecached file might be in a “place” over which the computer user has control, in order to establish possession, it is necessary to satisfy mensrea or fault requirements as well.

Thus, it must be shown that the file was knowingly stored and retained through the cache. (emphasis inoriginal) [60] The appellant argues that the Crown did not prove that the images of child pornography were knowingly stored andretained.

The appellant says there is an absence of evidence that the appellant caused the images to be filed on the computer and that hewas aware of same, and that as a consequence the Crown failed to prove that he possessed the images. [61] At paragraph 28 of his factum the appellant sets out a list of factors that it is submitted support the appellant’s position ofhis lack of knowledge.

Those factors are said to be a lack of evidence that the appellant, “was aware child pornography had been filedon the computer by its web browser or that child pornography existed on the computer; all of the images were from the internet and werecached by the computer’s web browser; the image files of child pornography could be placed on the computer without the operator’sknowledge; the image files of child pornography could come onto the computer without someone being at the keyboard; a Trojan horseprogram existed on the computer which could possible open a back door to allow other activities such as downloading child pornographyto occur; and adware programs existed on the computer.

These programs could place advertising web pages on the computer.” [62] To quote the appellant: Based on these facts, it is submitted that there is no evidence of the appellant having knowledge or control of child pornography prior toMs.

Scarborough bringing it to his attention on February 4, 2007, and it is reasonable to find that the child pornography could have beenremotely placed on the subject computer by others without the knowledge or control of the appellant. [63] In addition it is submitted that the finding of the material and the reporting of same to the police does not constitutepossession at law, as the possession was immediately reported to the police. In other words the possession was “innocent”. [64] The appellant, quoting Doherty J.A. in R. v. Chalk, 2007 ONCA 815 who in turn relied upon R. v.

Daniels 2004NLCA 73 , 2004 NLCA73, argues that “it is the element of control, including deciding what will be done with the material, thatis essential to possession.” [65] In the appellant’s reply to the respondent’s factum the appellant took issue with the form of the Crown’s factum, notingthat it did not comply with the Criminal Proceedings Rules.[3] The appellant argued that the court should therefore not consider it. [66] It was further argued that the trial judge’s reference to the three-step process is said to be devoid of evidentiary anchor.Rather it is argued that the trial judge conflated the questions asked by Crown counsel at trial with evidence. [67] The appellant underscores that the child pornography could have come onto the computer without the operator’sknowledge; that the Crown expert could not say who put the content on the computer; nor could the Crown expert say if someone was atthe keyboard when the material came onto the computer.

The Respondent’s Position [68] The respondent submitted that the trial judge carefully and accurately reviewed the evidence. He conducted a faithfulassessment of R. v. W.D. [69] As with the appellant, the respondent made reference to the evidence from the various witnesses. [70] The respondent distinguished the decision in R. v.

Morelli and argued that although it was released “long after” JudgeMorgan released his decision in the case at bar, the learned judge made the findings that the images that were accessed were accessed bythe appellant, were saved to internet files and were downloaded by the appellant. [71] To quote the Crown’s position, “the findings in the case at bar anticipate Morelli and are consistent with possession ofthe underlying data.” The Trial Judgment [72] In careful reasons, Judge Morgan outlined the evidence advanced at trial inclusive of exhibit 1, the 55 images of childpornography.

Although counsel were ad idem that the images constituted child pornography, the trial judge independently assuredhimself that the material was indeed of such ilk. Exhibit 2 was the report of Special Constable Ryder. Exhibit 3 was the videotape of theinterview of Mr. Nanos, with its aide memoire transcript for reference.

[ 73 ] The trial judge, in reviewing the evidence of Special Constable Ryder, succinctly reviewed the evidence of Special Constable Ryder. The overview of that evidence was inclusive of the fact that the images of child pornography came from surfing the internet. There were two live MSN accounts, the ‘park1315’ Hotmail account that had the password automatically logged on, and the ‘Glowyhandyboy’ Hotmail account which required the user to enter the password each time that the computer was logged on. [ 74 ] For the date of January 27, 2007 the chronology of computer use was set out.

The chronology was entered as part of Exhibit 2, Tab C. In addition the evidence of Mr. Nanos was referenced which established that he had a character that he used when playing StarCraft BroodWar. Indeed Mr. Nanos agreed that he had played this game. Pornography of an adult nature was viewed, as was pornography which was agreed and proven to be child pornography. 36 images of child pornography were viewed and downloaded between 6:12 am and 7:06 am. These images were placed in temporary internet files. [ 75 ] On February 01, 2007 more child pornography was downloaded.

The trial judge noted that on this date and on January 27, 2007 the majority of images were separately downloaded. [ 76 ] The trial judge noted the evidence of Mr. Ryder wherein the witness overviewed that to place the images into a file someone had to go into the temporary internet files, generate a thumbnail file and place them in a thumbnail file in addition to saving the file. [ 77 ] The trial judge then overviewed the evidence of Ms. Scarborough, Mr. Nanos and their daughter R.N. [ 78 ] The trial judge set out the steps that are required in the R. v. WD analysis.

He also overviewed the issue of possession and noted that it can be determined in number of ways. On the evidence in this case the trial judge noted that the images were found on the computer, were found in files, and were found in a computer that was in the residence of Scarborough and Nanos. Mr. Nanos had access to and used the computer. [ 79 ] The trial judge overviewed the position of the defence and Crown drawn from their written submissions. The defence said the accused lacked the mens rea to possess the material, and did not knowingly place the material into files.

The defence said that Michael Ryder could not say who downloaded the child pornography. [ 80 ] In addition, counsel argued at trial that Mr. Nanos’ denial of knowledge was believable. Further it was conceivable that his daughter, R.N., downloaded it.

In summing up the position of the defence at trial, Justice Morgan quoted the following: The defence respectfully submits that given the whole of the evidence in this matter that the court is not able to conclude beyond a reasonable doubt whether or not Mike Nanos downloaded the child pornography, saved the child pornography, viewed the child pornography, and knew that the child pornography was on the subject computer. [ 81 ] With respect to the position of the Crown, the trial judge noted the opportunity that Mr. Nanos had to download the pornography.

The user name ‘Glowyhandyboy’ and the ‘mike2’ character substantiated who was on the computer when the child pornography was accessed and downloaded. [ 82 ] In relation to Ms. Scarborough, the trial judge referenced and accepted that she did not download the material. With respect to the evidence of R. N., the trial judge rejected it as unreliable. [ 83 ] The trial judge then reviewed the evidence of the appellant. He rejected the evidence in its entirety.

He described the appellant as a “serial denier.” He noted the shifting position of the appellant from categorically denying that he possessed the material, to saying that if he did he did not have the intent to do it. [ 84 ] Mr. Nanos also testified that he did download adult pornography however if child pornography was ‘piggy-backed’ to adult pornography, it wasn’t his fault as he didn’t know. [ 85 ] The appellant also testified that he was otherwise too drunk to know what he was downloading in any event. [ 86 ] Various extracts of the cross examination of Mr. Nanos were referenced.

The trial judge summarized the evidence of Mr. Nanos as follows: His continual shifting of his denials that he didn’t do it, that if he did it he did it by accident, if he did it he did it because he was so drunk he wasn’t able to see what it was that he was putting on to the computer; at the same time he denies that he ever put them into files. [ 87 ] The trial judge found as a consequence that this formed one basis to reject Mr. Nanos’ evidence. [ 88 ] The other reason was that Mr. Nanos was prepared to tailor his evidence to suit his perception of the evidence against him. He described Mr.

Nanos’ responses to Crown counsel questioning in relation to who was using the computer when the material was downloaded as a “tissue of lies that Mr. Nanos is manufacturing to offer an explanation to address the strengths of the Crown’s case.” [ 89 ] The trial judge also noted the evidence of Mr. Nanos was externally inconsistent with respect to the evidence of Ryder and the issue of accidental downloads. Indeed when asked about the three steps to download and place the images into files, Mr. Nanos himself agreed that it was hard to do this by accident. [ 90 ] Finally where Mr.

Nanos testified that he used only one pornography site, the evidence of Ryder showed that when the person used the computer that person accessed it via the ‘Glowyhandyboy’ account, and accessed child pornography sites. [ 91 ] The trial judge also noted that the accidental download of one or two images was perhaps explainable, but rejected that such accidental downloading could occur 55 times. [ 92 ] Referencing the evidence of Ryder that a three stage process was used to save the images to the computer, the trial judge

rejected that drunkenness could have led to the possession of the images. [ 93 ] On the totality of the evidence the trial judge was satisfied that the Crown had proven the case beyond a reasonable doubt. [ 94 ] The trial judge ruled: I, again, reject all of Mr. Nanos’ evidence about accidentally or unwittingly downloading this material. The evidence offered by the Crown satisfies me beyond a reasonable doubt that Mr. Nanos downloaded the materials, put them into temporary Internet files, and when he did that he exercised some knowledge over the content and control over the content. [ 95 ] A finding of guilt was therefore made. Decision Role of the

summary conviction appeal court [ 96 ] As an appellate court, this court does not simply substitute its view of the case for the trial judge. The court must however, on review, assess whether the decision made by the trial judge is based on findings that could have been reasonably reached. To set aside a verdict under section 686(1)(a)(i), the reviewing court must ask whether a properly instructed jury, acting judicially, could reasonably render the verdict.

The Trial judge’s verdict is sound [ 97 ] I find in this case that the evidence as against the appellant was overwhelming and completely substantiated the conviction registered against him. [ 98 ] The Crown was called upon to prove possession, incorporating as it does, knowledge and control. The evidence proffered by the Crown was exceedingly capable of establishing knowing possession.

The experienced trial judge directly applied the necessity of the Crown’s requirement of proof of possession beyond a reasonable doubt based on knowledge and control. [ 99 ] The trial judge expressly referenced accidental downloading; completely rejected the appellant’s testimony as a “tissue of lies” and noted the hemispheric changes in the appellant’s version of the events.

His conclusion that the evidence of the appellant was totally devoid of favour is well grounded. [ 100 ] The appellant focused on the possibility of innocent and/or accidental downloading, namely the saving of material by computer initiated application. He further says that there was no evidence that a three step process was employed to save the 55 images. [ 101 ] Contrary to the position of the appellant, however, Mr. Nanos agreed that saving images such as these would take three steps. In other words, a series of actions were required to have oneself come into possession of the material.

In answer to Crown counsel’s question about Mr. Nanos’ suggestion that if he downloaded the images it was by accident, Mr. Nanos agreed with the Crown that it’s hard to save by accident as it takes about three steps. [ 102 ] This is not a case where a proposition of Crown counsel in its questioning of a witness, without more, became synonymous with an evidentiary finding. It is apparent based on the exchange between Crown counsel and Mr. Nanos that Mr. Nanos agreed with the Crown’s suggestion.

Special Constable Ryder also overviewed the method of saving such material. [ 103 ] The three step process finding was entirely open to the trial judge. There is no error in the trial judge’s reasoning in this regard. [ 104 ] I note as well that given the evidence of Scarborough and Nanos and the rejection of R. N.s’ evidence, that the finding that Mr. Nanos was the one using the computer at the time the images were saved is entirely reasonable and frankly unassailable. The finding that Mr.

Nanos had been on the computer before and after the downloads and that his user name for his Hotmail account was used with the necessity of accessing it with a password in conjunction with all of the other evidence accepted by the trial judge, is totally consistent with the finding of possession. [ 105 ] Coupled with the fact that the assessment of credibility by the trial judge is devoid of fractures in its application, the reasonableness of the verdict is evident. [ 106 ] It is rank speculation to suggest, as the appellant does, that the images could have arrived on the computer in a manner contrary to how the trial judge determined that they did.

The trial judge was equipped with the options suggested to him as to why the Crown had not proven its case beyond a reasonable doubt. He rejected all of those options. That rejection was fully premised on the findings that he made based on his clear path of reasoning. [ 107 ] In coming to my conclusion that the appeal must fail, I am cognizant of the comments of Fish J.A. in Morelli . Unlike the fact pattern in Morelli , there was no risk the conviction was founded on the appellant having a lack of mens rea in relation to the material. The Honourable Mr. Justice H.K. O’Connell

DATE RELEASED: May 14, 2013