R. v. Leblanc, 2017 ONSC 729

CITATION : R. v. Leblanc , 2017 ONSC 729 COURT FILE NO.: 13-13170 DATE: 2017/01/31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN – and – MATHIEU LEBLANC Accused ) ) ) ) ) ) ) ) )) ) ) )) Louise Tansey , for the Crown Ronald G. Guertin , for the Accused ) ) ) HEARD AT OTTAWA: January 16 – 20 and 25, 26, 2017 REASONS FOR JUDGMENT PHILLIPS J. [ 1 ] Mathieu Leblanc is charged with possession of child pornography. His trial proceeded expeditiously with numerous facts admitted pursuant to

section 655. Elements like jurisdiction, dates, identity, and continuity of all seized exhibits were all admitted. As well, it is agreed that the 1452 unique images found on the computer assigned to Mr. Leblanc by his employer do indeed constitute child pornography as defined in

section 163.1 of the Criminal Code . [ 2 ] As such, the only issue to be determined is whether Mr. Leblanc has been proved to have possessed the images in question. Of course, Mr. Leblanc need not prove anything. He is presumed innocent. The Crown bears the onus of proving each essential element beyond reasonable doubt. [ 3 ] Possession is defined in

section 4 of the Code , where it is stated that a person has anything in his possession when he has it in his personal possession or when he knowingly has it in any place, whether or not that place belongs to him, for the use or benefit of himself. The relevant jurisprudence is clear that to establish possession, the prosecution must prove that the accused had: (

a) physical contact with, or manual control over, the material in question; (

b) knowledge of the material’s nature or character; and (

c) a measure of control over the material, whether exercised or not. [ 4 ] I accept the evidence which indicates that the computer hard drive in question was contained in a computer tower assigned to Mr. Leblanc. It was part of his workspace, a desk inside a cubicle bearing his name. He did indeed use it, a fact observed by his colleagues. I have no doubt that the computer in question was under Mr.

LeBlanc’s physical control throughout the material time. [ 5 ] I accept the evidence from witness Houle to the effect that each employee at NRCan had a unique username and password which is required to access the computer network. I find that the username “Matlebla” was assigned to and used by the accused. [ 6 ] I accept the expert opinion evidence given by witness Corkery that the login information establishes that Mr. Leblanc had exclusive control of the computer over the entirety of the material time.

While the computer was indeed connected to a larger network and could have been manipulated by others, such access would have required logging in as a different user and anything done would have been recorded. That never happened. I find as a fact that no one but Mr. Leblanc used or manipulated the computer in any way during the time span in question. [ 7 ] The expert opinion evidence further demonstrates beyond a reasonable doubt that Mr. Leblanc, using his username “Matlebla”, created the root folder under which the child photography was found on August 10, 2012. This folder was given the name

“P”, and is a subfolder of “Pics”, which is a subfolder of “stuff to keep”, which is a subfolder of “Privé”. I accept that all of those monikers were created by Mr. Leblanc. [ 8 ] Parenthetically, I shall note that I discern from the logical and multifaceted way in which Mr. Leblanc organized his file structure that he has a degree of computer knowledge sufficient to know what is on his computer and where. He clearly knows how to create files and structure his data, consistently demonstrating an ability and interest in organizing the data by subject matter.

The personal data storage methodology he applied to his work computer is by no means disorganized or unsystematic. [ 9 ] The folder marked “P” contained a subfolder called “pictures”, which itself had nine subfolders. Those subfolders were created on Mr. Leblanc’s computer on December 20, 2012 between 16:06:14 and 16:12:21. I accept that that creation time-span suggests they were transferred from another storage device, like a USB key or zip file. Because folder names can migrate along with the data, I shall operate on the assumption that Mr.

Leblanc did not conceive of the names for the subfolders beneath the “P” folder. [ 10 ] There are only nine of them though and the list can be read in seconds. Below “Magail La Petite Infirmière” is one called “Natalie Strip Stewardess”. Immediately below that one is a folder containing child pornography. Its name is: “Ok – best pics (Lolitaguy) Ls-Land Issue_pthc_hussyfan”. [ 11 ] I find that when Mr. Leblanc transferred in the data in question he would have made the decision as to where it would be assigned within his larger folder structure.

As such, it was him who decided the data should go under “pics”, a folder name he had already conceived. One can see why he would put the data there - the nine subfolders in question do indeed contain pictures. His choice to file the subfolders where he did, therefore, makes sense. More than that, it demonstrates that he knew what it was: pictures. He was therefore in control of determining the ultimate location of the child pornography contained among the subfolders.

His filing decisions and acts demonstrate control and an ability to determine what should be done with the material. [ 12 ] I accept that there is no evidence that Mr. Leblanc ever accessed or viewed the images in question. While there is no evidence that he did not, there is no evidence that he did. Keeping the onus on the Crown where it belongs, I shall operate on the finding that he never did anything in respect of the images after transferring them and filing them as he chose to do on December 20, 2012.

Of course where there is evidence that a person viewed the material, he would be fixed with knowledge of its contents. However, while such evidence may be sufficient proof of knowledge, it is not strictly necessary. Knowledge may instead be inferred from circumstantial evidence. [ 13 ] It is admitted that on August 23, 2013, Mr. LeBlanc became the subject of a workplace investigation as a result of a sexualized incident which took place in the office on August 22, 2013.

It was alleged that he had masturbated in proximity to an unsuspecting female co-worker. [ 14 ] I find, based on the combined evidence of Wolf Schmueck and the expert opinion given by witness Corkery, that approximately one half hour before being escorted from his workplace under suspension for the alleged sexualized incident, Mr. Leblanc saw fit to delete the “P” folder. No other deletions were done. The “P” folder was the only thing he apparently felt compelled to delete.

As mentioned, the “P” folder contained only one subfolder: “Pictures”, which contained nine subfolders, some of which contained the child pornography folder in question. For instance: “Ok – best pics (Lolitaguy) Ls-Land Issue_pthc_hussyfan”. [ 15 ] Did Mr. Leblanc know that the “P” folder contained contraband, i.e. child pornography? I find that the Crown has proven beyond a reasonable doubt that he did. [ 16 ] To some extent, the names of the files speak for themselves.

Anyone filing “Ok – best pics (Lolitaguy) Ls-Land Issue_pthc_hussyfan” under an already created folder for “Pics” which exists under their “Prive” folder is at least reckless or willfully blind about the content of such a folder. There are only nine subfolders to the “P” folder. Arguably, at least one third of them indicate some form of pornography and call out for some inquiry or would reasonably be expected to pique curiosity. However, I can accept that not everyone knows the works of Nabokov or is aware that pthc means “pre-teen hard-core”.

I am therefore careful to draw very little from this particular point beyond inferring from it an unlikelihood of inadvertent possession. [ 17 ] Where I find the evidence to prove beyond a reasonable doubt that Mr. Leblanc knew the content of the “P” folder is his decision to delete it on August 23, 2013. He deleted the impugned items just minutes before being suspended from work as a result of becoming subject of a workplace investigation as a result of the sexualized incident which took place just the day before. Of course I presume nothing but innocence about him from that alleged sexualized incident.

However, it is an admitted fact that an allegation had been made, regardless of whether it was true or not. I find it impossible to believe that the two events – the allegation of sexual impropriety and the contemporaneous deletion by him of his “P” folder – are unconnected or merely coincidental. I infer that he deleted the “P” folder because he caught wind of the allegation and worried about potential consequences of having the material in the “P” folder discovered, a possibility worth worrying about in the circumstances.

The overwhelming inference is that the file deletion that day was motivated by concern about the then ongoing “sexualized incident” investigation. [ 18 ] Why would Mr. Leblanc delete the “P” folder as a result of apparently learning that he was under investigation for a “sexualized incident” in the workplace? The only plausible inference that can be reasonably drawn is that it was because he knew that the contents of the “P” folder would not do him any favours given the investigation’s subject. He knew it was sexual material of an improper nature that he should not get caught with.

Of note is the fact that he had been caught with normal adult pornography before without consequence. What was different about these files? His compulsion to delete a specific folder from his computer speaks volumes in the circumstances. The conclusion is inescapable that he knew the full character of that “P” folder and would have consequently known himself to be in possession of the child photography within it. [ 19 ] I find that the Crown has proved beyond a reasonable doubt that Mr. Leblanc was in possession of the child pornography that was found on his work computer.

The evidence shows that he had both knowledge of it and was in control of it. I find Mr. Leblanc guilty.

Justice Kevin B. Phillips Released: January 31, 2017 CITATION : R. v. Leblanc , 2017 ONSC 729 COURT FILE NO.: 13-13170 DATE: 2017/01/31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – MATHIEU LEBLANC Accused REASONS FOR JUDGMENT Justice Kevin B. Phillips Released: January 31, 2017