Docket: CACR1964 Her Majesty the Queen Respondent - v. -, 2012 SKCA 4

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 4 Date: 20120123 Between: Docket: CACR1964 Her Majesty the Queen Respondent - and - Andrew Joseph Benson Appellant Coram: Jackson, Richards and Herauf JJ.A. Counsel: Mark Brayford, Q.C. for the Appellant W. Dean Sinclair for the Crown Appeal:

From: 2010 SKQB 459 Heard: October 31, 2011 Disposition: Conviction and Sentence Appeals dismissed Written Reasons: January 23, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Herauf J.A. I.

Introduction [ 1 ] Andrew Joseph Benson was convicted by a Court of Queen’s Bench Justice of the following offences: Count #1 : on or about 31 January 2007 have in his possession child pornography to wit: computer images and videos of a person under 18 years of age engaged in explicit sexual activity, contrary to s. 163.1(4) of the Criminal Code . Count #2 : on or about 31 January 2007 make available child pornography to wit: computer images and videos of a person under 18 years of age engaged in explicit sexual activity, contrary to s. 163.1(3) of the Criminal Code .

Count #3 : on or about 27 April 2007 have in his possession child pornography to wit: computer images and videos of a person under 18 years of age engaged in explicit sexual activity, contrary to s. 163.1(4) of the Criminal Code . [ 2 ] Mr. Benson was sentenced to a term of 15 months on count 2 (make available) and three months on counts 1 and 3 (possession) consecutive to each other but concurrent to the 15 months on count 2.

He was also ordered to enter into a Probation Order for a period of three years and had a number of ancillary orders made against him which will be outlined when discussing the sentence appeal. [ 3 ] Mr. Benson appealed both his conviction and sentence for the above noted offences. [ 4 ] Following a brief recitation of the facts, each ground of appeal will be addressed. In the result, for the reasons provided, I would dismiss Mr. Benson’s appeal from conviction and his appeal from sentence. II. Background Facts [ 5 ] The trial judge neatly summarized the relevant background in his judgment as follows: 3 Sgt.

Darren Parisien is an investigator in the Saskatoon Police Service and works within the Saskatchewan Integrated Internet Child Exploitation Unit. He has been a member for some two and one half years. By way of introduction, he testified about what is described as (1) an IP address; (2) a hash value; and (3) the Gnutella network. The first is an address assigned to a particular customer. It may be static or dynamic. It was likened to a license plate. The second is the series of numbers and letters which identify a file. The hash value was likened to DNA.

Each file has a unique hash value. 4 The third is the background for computer communication and file sharing. There are some 4,000,000 users worldwide. One connects to the Gnutella network through a program of which there are many. Two of them, which appeared in this investigation, are "LimeWire" and "FrostWire". In essence they are search engines with the significant difference that the result comes only from what others are sharing from their computers. 5 On January 31, 2007, Sgt. Parisien went to the Gnutella network to search for child pornography by browsing. He obtained a six page list of shared files (Ex.

P3) which appeared to be child pornography. This was confirmed by comparing the hash marks with what was in his data base of pornography. The confirmation report (Ex. 4) listed twenty-three files as being child abuse images. The original search had also disclosed the IP address.

6 The officer then ascertained that the IP address was in Saskatoon and through a request to SaskTel Security (Ex. P7), he learned that the computer with the stated IP address was at 3829 Centennial Drive, Saskatoon, Saskatchewan. He next confirmed that Gail Waldner, Philip Benson and their child, the accused Andrew Benson, resided at that address. With all of this information, he obtained a search warrant on April 18, 2007 with respect to the subject residence and executed it on April 27, 2007, at 12:55 p.m.

Nobody was home, but when telephoned, Philip Benson attended and was cooperative. 7 Two computers were found. Philip Benson advised that the one located upstairs in the office was that of his wife and himself. The one downstairs was that of the accused. Limewire and FrostWire were found on both computers. Child pornography was found on both computers. The two computers, some CD's and some DVD's were seized. The search concluded at 2:40 p.m. 8 On December 15, 2007, Sgt. Parisien did a screen capture (Ex. P13) of the upstairs computer.

This process revealed that on April 27, 2007, between 11:10 a.m. and 11:45 a.m., twelve files had been shared and subsequently the pictures were deleted. 9 Then on October 21, 2010, Sgt. Parisien did a forensic scan of the two discs (Ex. P16) seized from the basement. According to the analysis report, the total number of files on disc (1) was 2,646, some of which were child pornography. A like report (Ex. P15) stated the number of files on disc (2) was 797 and again it included child pornography. On that same date he captured the screen information (Ex.

P17) about the installation of FrostWire. 10 The second, and last, Crown witness was Sgt. Mark Closson, also a member of the Saskatoon Police Services. He possesses expertise in forensic examination of computers. He did an ENCASE analysis of the hard drives from the two seized computers. 11 In the upstairs computer he found that 25 files had been accessed and created on April 27, 2007 at 11:11 a.m., but they had been deleted. He also found 15 pictures and two video files had been created on April 27, 2007, at 10:59 a.m. They also had been deleted.

The files were found in the LimeWire program. 12 From the downstairs computer he removed three hard drives. One was of no interest. On the other two he found evidence of child pornography. In the one there were about ten images in the Windows program. On the other, he found four images and one video file, the last of which may not be child pornography. All the files had been deleted. Finally, he produced a list (Ex.P19) of all the programs installed in the computer. One such program was LimeWire. 13 On May 1, 2007, Philip Benson telephoned Sgt. Parisien to request a meeting with him.

It took place on May 4, 2007 when he and the accused met with the officer at the police station. In time, Sgt. Parisien conducted an interview of the accused who by then was a primary suspect. He was given the usual warning. The interview lasted some 30 minutes; was videotaped; and is contained on a disc (Ex. P12). 14 The statement is significant for two reasons. First, it contains a denial of guilt or responsibility; secondly, it outlines the knowledge of the accused about LimeWire. [ 6 ] It should also be mentioned that defence counsel (not his counsel on appeal) agreed at the beginning of the trial that Mr.

Benson’s warned statement was admissible. He also agreed that the two police witnesses, Detective Sergeant Darren Parisien and Sergeant Mark Closson, were qualified as expert witnesses. Detective Sergeant Parisien was qualified as an expert in on-line child exploitation investigations and peer-to-peer computer file sharing assisted by programs such as LimeWire. Sergeant Closson was qualified as an expert in forensic computer analysis and the use of the computer program known as ENCASE. [ 7 ] These two were the only witnesses called by the Crown. The defence called no witnesses. III.

Conviction Appeal [ 8 ] With respect to Mr. Benson’s appeal from conviction in relation to the possession charges in counts 1 and 3, he alleges that the trial judge should not have considered the child pornography images found on the CDs at all. Secondly, Mr. Benson argues that the trial judge erred by failing to consider that the image files had been deleted from both computers prior to them being seized which shows that he never intended to possess the images. [ 9 ] With respect to the making available charge as set out in count 2, Mr.

Benson contends that the conviction is unreasonable because the trial judge 1) misapprehended the evidence as to whether Mr. Benson shared files with Sergeant Parisien; 2) failed to consider evidence that Mr. Benson normally had the file sharing properties turned off; and 3) failed to consider whether the default settings of the file sharing programs were responsible for sharing. 1. Possession Charges - Counts 1 and 3 [ 10 ] There is no dispute that the images tendered as evidence were child pornography within the meaning of the Criminal Code .

The trial judge found as a fact that the images were child pornography. Mr. Benson does not dispute this finding.

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a) The images on the CDs were not “computer images” [ 11 ] With respect to the two possession counts, Mr. Benson contends that the trial judge should have restricted his consideration of the evidence to “ computer images and videos of a person under 18 years of age engaged in explicitly sexual activity” as per the wording of the indictment. This submission is made on the basis that the charges as framed relate to computer images and, as a result, the evidence of child pornography contained in the CDs should not have been considered by the trial judge. Mr.

Benson does not deny that there were substantial amounts of child pornography found on two of the CDs that were seized. [ 12 ] The uncontradicted evidence before the trial judge was that the images on the CDs were “computer images”. Sergeant Parisien testified that the images had been transferred from a computer hard drive to the CDs. Furthermore, there was no real dispute that Mr. Benson was the person who transferred child pornography image files from his computer to the CDs. Some of the image files were saved in a folder called “Dirty Pictures for Andrew”. [ 13 ] In any event, there was no suggestion that Mr.

Benson was misled or prejudiced by the wording of the possession charges. The CDs were tendered as proof that Mr. Benson possessed offending images of child pornography. Mr. Benson obviously understood the Crown’s theory. There is no indication that Mr. Benson was taken by surprise or misunderstood the nature of the Crown’s case. There was absolutely no issue raised before the trial judge that the CDs should not be considered as evidence. I would not give effect to this ground of appeal. (

b) Deletion of the child pornography from the computers [ 14 ] Mr. Benson’s contention is that, since he had deleted all the child pornography from his computers prior to seizure, this fact alone should have called into question whether he intended to possess the images. The gist of this submission is that perhaps Mr. Benson accidentally downloaded child pornography, which he did not want and then deleted it, or that he had intended to download adult pornography, and the file descriptions and search terms were ambiguous as to whether it was child or adult pornography. [ 15 ] This submission has little merit.

Firstly, the trial judge did not believe Mr. Benson’s denial in his warned statement that he was not guilty or responsible for the child pornography found on the computers in the home where he resided with his parents. Secondly, Mr. Benson’s comments in the warned statement proved to the trial judge that Mr. Benson had extensive knowledge concerning file sharing programs. Thirdly, as stated by the trial judge, the quantity of child pornography found and the circumstances surrounding the offence belies any rational contention that the offending material had been acquired through accident or error.

Finally, reference can be made to the findings of the trial judge relating to the possession charges as found in para. 28 of the judgment: 28 The accused, as appears from his statement, is computer literate and has considerable knowledge and experience in file sharing and the operation of his computer. He is familiar with LimeWire and how it works. He has it on his computer along with FrostWire. He knows how to download files. He is knowledgeable about file sharing and how it works. He knows how to turn off the sharing. He can manipulate files and back them up to discs.

In short, on his computer things do not and did not happen by chance. Whatever got onto his computer got there through deliberate action. He knew what he was doing and he definitely intended to do it. [ 16 ] The trial judge found that Mr. Benson had knowledge and control which are essential features of criminal possession. See R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 at para. 15 . In addition, the fact that the material was deleted after viewing does not nullify the knowledge and control aspect of criminal possession.

As noted by the Supreme Court in Morelli , “it does not matter for the purpose of criminal possession how briefly one is in possession of the object” (at para. 30). [ 17 ] In sum, the evidence proving that Mr. Benson knowingly possessed child pornography on the dates specified in count 1 and count 3 was substantial and uncontradicted. I find no merit in this ground of appeal and would dismiss the appeal from the possession charges in counts 1 and 3 of the Indictment. 2. Make Available Child Pornography - Count 2 [ 18 ] As previously noted, Mr.

Benson argues that the conviction in relation to the second count is unreasonable since the trial judge 1) misapprehended the evidence as to whether Mr. Benson shared child pornography files with Sergeant Parisien; 2) failed to consider the evidence that Mr. Benson normally had the file sharing properties of LimeWire or FrostWire turned off; and 3) failed to consider whether the default settings of these file sharing programs were responsible for the sharing which occurred. I will deal with each of these arguments in turn.

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a) The trial judge misapprehended the evidence as to whether Mr. Benson shared files with Sergeant Parisien [ 19 ] Mr. Benson submits the evidence is ambiguous as to whether Sergeant Parisien was able to download any child pornography from the shared folder on Mr. Benson’s computer. Mr.

Benson contends since Sergeant Parisien was only able to view his shared folder that this is not enough to constitute the offence of “make available child pornography” pursuant to s. 163.1(3) of the Criminal Code . [ 20 ] The Crown acknowledges that the trial judge misapprehended the evidence by finding that Sergeant Parisien had downloaded child pornography from Mr. Benson’s computer on January 31, 2007. [ 21 ] In order to understand Mr.

Benson’s submission, it is necessary to set out the trial judge’s specific finding as it relates to count 2: 30 Count (2) alleges that the accused did make available child pornography on January 31, 2007. The practice of file sharing constitutes the act of making available. It is tantamount to holding out files or material to be taken or downloaded by others. Through the testimony of Sgt. Parisien, confirmed by the analysis and testimony of Sgt. Closson, it is known that on the date of January 31, 2007, there was child pornography within the accused's computer.

It is also known that it was available for sharing for that is what enabled Sgt. Parisien to obtain the material. It is also known from the analysis of Sgt. Closson and the properties file that at the relevant time, sharing was enabled. This must have been known to the accused for that information would have appeared on the screen. I am satisfied that nothing happened on that computer without the knowledge and consent of the accused.

In the circumstances, I am satisfied that the accused did make available child pornography contrary to s. 163.1(3) of the Criminal Code . [ 22 ] It is apparent from the evidence that Sergeant Parisien was not able to download the child pornography from Mr. Benson’s basement computer on January 31, 2007. The evidence of Sergeant Parisien as presented at trial bears repeating here: [1] Q - underneath the heading, “Status,” it says, “Host busy”? A Yes. Q What is that?

A It’s attempting to get the file from that user, but when it connects to the user, the user’s computer is busy because of one of two things: Either he is downloading significant amounts of data or files; or he’s sharing significant amounts of data or files; and – or a combination of the two, and I’m waiting my turn to get the file from that user. Q And when the host is no longer busy, what would happen to your attempt to get that file?

A I would get the file from the user or he would be off-line if he turns the computer off, but if that’s what you mean, once it stops being busy, then the file would come through to me. [ 23 ] The Crown acknowledges that the trial judge misapprehended this portion of the evidence to conclude that Sergeant Parisien had downloaded child pornography from Mr. Benson’s computer on January 31, 2007. The Crown submits that this misstatement by the trial judge was not fatal to the finding of guilt beyond a reasonable doubt. The Crown contends that proving that Mr.

Benson made child pornography available did not require evidence that he shared or transmitted child pornography but only that he made child pornography available to others. In other words, the offence is made out and complete when the pornographic images and videos were made available to others not when it is accessed or transmitted to others. The Crown relies on an unreported decision of the Ontario Superior Court in R. v.

Mallory (April 22, 2008), File No. 10174 where the learned justice stated that: [ 24 ] By leaving the offending material in a “shared file” the accused knew others had access to child pornography and the elements of the offence [make available] have been established. No further positive act need have been taken. … [24] Furthermore, the Crown submits that in Sergeant Parisien’s expert opinion, the properties of the FrostWire file sharing program are such that if he could view the contents of Mr. Benson’s shared folder, the contents were available for sharing.

The host busy signal did not mean that the files were not available. The signal meant only that Mr. Benson was downloading large amounts of data into the shared folder or that other people were uploading large amounts of data from Mr. Benson’s shared folder. Mr. Benson’s computer was too busy to immediately accommodate Sergeant Parisien’s request for Mr. Benson’s child pornography files, perhaps because Mr. Benson’s computer was sending these files to other users. [ 25 ] In R. v.

Spencer , 2011 SKCA 144 , a recent decision of this Court, Caldwell J.A. set out the mens rea element of making available child pornography under s. 163.1(3) of the Criminal Code as follows: 87 In the context of a file sharing program, the mens rea element of making available child pornography under s. 163.1(3) requires proof of the intent to make computer files containing child pornography available to others using that program or actual knowledge that

the file sharing program makes files available to others. However, the Crown could also satisfy the knowledge requirement of the mens rea element of the s. 163.1(3) "makes available" offence on the basis of wilful blindness by proving the accused's file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality.

This mens rea requirement does not require actual knowledge on the part of the accused, but rather the requisite element is the accused's awareness that the downloaded child pornography could be made available to others by his use of a file sharing program. [ 26 ] In coming to this conclusion, Caldwell J.A. referenced the speeches to the House of Commons when the bill was introduced. This bears repeating and can be found at para. 78 of the Spencer judgment: 78 Before its enactment, the Criminal Law Amendment Act, 2001 was known as Bill C-15A, 37th Parliament, 1st Session.

In her speech to Parliament on the Second Reading of Bill C-15A, the then Minister of Justice and Attorney General of Canada said ( House of Commons Debates , No. 054, 3 May 2001, at 1620-1625): Bill C-15 seeks to create four new offences: an offence of transmitting child pornography to cover one to one distribution, such as e-mail sent to one person only; an offence of making child pornography available to cover those who post child pornography on a publicly accessible website but take no other steps to distribute it ; an offence of exporting child pornography to meet our international obligation; and an offence of accessing child pornography to capture those who intentionally view child pornography on the net but where the legal notion of possession may be problematic.

The offence is defined to ensure that inadvertent viewing would not be caught under this offence. [emphasis added] [ 27 ] Cameron J.A., in a concurring opinion in Spencer , set out various examples of situations where there could be evidence that a person knowingly made child pornography available to others.

One of these examples is very close to the fact situation in this case and is repeated here: 102 Suppose, for example, that a computer file-sharing program only allows a person using the program to share with others the content of that person's shared file folder by activating the file-sharing function of the program. If, in that event, the person activates this function, or turns the switch on so to speak, he or she will have taken a positive step, or performed a positive act, toward the end of sharing the content with others.

If the content consists of child pornography, the fact the person turned the switch on will afford evidence of the person having knowingly made child pornography available to others. [ 28 ] After a careful reading of the trial judge’s reasons, I am not certain that he made a misstatement concerning the evidence that Sergeant Parisien was able to “obtain the material”. This could simply refer to Sergeant Parisien being able to verify that Mr. Benson’s downstairs computer contained child pornography in a shared folder, as opposed to Sergeant Parisien being able to download the material.

In any event, even if the trial judge misapprehended this piece of evidence, the other evidence against Mr. Benson is very compelling. [ 29 ] The Crown adduced evidence at trial to the effect that: (

a) Sergeant Parisien was able to view a shared folder, located in Saskatchewan, on January 31, 2007. Using the IP address, Sergeant Parisien was able to determine that the computer was located in Mr. Benson’s home, and more specifically was the computer in Mr. Benson’s basement that Mr. Benson used exclusively; (

b) The shared folder on Mr. Benson’s computer on January 31, 2007 contained known child pornography files, which Sergeant Parisien was able to verify because the hash values assigned to the files in the shared folder matched those of known child pornography files; (

c) Sergeant Parisien attempted to download a known child pornography file from Mr. Benson’s computer but the download status read “host busy”; (

d) The uncontroverted expert evidence of the two police officers explains that if a shared folder can be viewed, then the viewable files can be downloaded by another user. The host busy signal does not change that. It merely means, at that point in time, the user was uploading and/or downloading at full capacity and unable to share further; and (

e) Sergeant Closson explained that had the sharing function been turned off, Sergeant Parisien would not have been able to view Mr. Benson’s shared folder.

[30] Based upon this evidence, combined with the trial judge’s finding of fact that Mr. Benson is computer savvy, there is no doubt thatMr. Benson knowingly made child pornography available on January 31, 2007, and that a conviction was properly entered. I would notgive effect to this ground of appeal. (

b) The trial judge failed to consider that Mr. Benson normally had the file sharing properties turned off [31] Mr. Benson submits that the trial judge failed to give proper consideration to that aspect of the evidence which indicated Mr.Benson normally had sharing turned off. This evidence, which comes from Mr. Benson’s warned statement and was corroborated byforensic evidence, undermines, according to Mr. Benson, the necessary mens rea to commit the offence of making available. [32] The simple answer is that the trial judge did not believe the accused. The trial judge referenced R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 and the principles to be adopted in evaluating the remarks of Mr. Benson in his warned statement, especiallyhis denial. [33] The trial judge’s finding of fact relating to Mr. Benson’s knowledge of computers and file sharing programs has previously beenoutlined in para. 15. [34] Based upon this assessment, the trial judge was satisfied that nothing happened with Mr. Benson’s computer “without theknowledge and consent of the accused”. [35] It has already been established in relation to the possession charges that Mr.

Benson searched for, located and then downloadedactual child pornography files. There was simply no room for the trial judge to make an inference based upon all the circumstances atplay, including the vast amount of child pornography at issue here, that Mr. Benson’s contention that file sharing was generally turnedoff should or could raise a reasonable doubt as to his guilt. There is no merit to this ground of appeal. (

c) The trial judge failed to consider default settings [36] Mr. Benson contends that the trial judge failed to consider the possibility that FrostWire was available on January 31, 2007 becausethe program was being installed and not because he was involved in file sharing. The nub of the submission is that any unintendedsharing during the installation process should not be considered criminal. [37] This argument is highly implausible. The evidence from Sergeant Parisien was that the child pornography images in Mr.

Benson’sshared folder appeared there after he installed the FrostWire or LimeWire programs and after Mr. Benson searched for, selected anddownloaded child pornography files. Sergeant Parisien knew that Mr. Benson was not in the process of installing FrostWire on January31, 2007 at 1:30 p.m. because by that date and time the program had been installed and used to download more than 100 pornographicfiles from other users. Mr.

Benson is asking the Court, without any evidence to prove so, to accept that the FrostWire installationprogram is preloaded with child pornography files that are automatically installed in the user’s shared folder when the user installs theFrostWire program. This contention is completely without merit. I would not give effect to this ground of appeal. In the result theconviction appeal is dismissed. IV. Sentence Appeal [38] Mr.

Benson received a sentence of 15 months imprisonment for making available child pornography and three months for eachpossession of child pornography charge, consecutive to each other but concurrent to the making available charge. The total incarceralsentence is 15 months. [39] In addition, Mr. Benson was ordered: (

i) to enter into a probation order for a period of three years; (ii) to provide a DNA sample;(iii) to comply with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c.10 for 20 years; and (iv) to enter intoan order pursuant to s. 161 of the Criminal Code (“parks and pools order”) for a period of three years. The judge also prohibited Mr.Benson from using a computer system as defined in s. 342.1(2) of the Criminal Code to communicate with a person under 16 years ofage. [40] There was no suggestion by Mr. Benson that the sentence imposed is outside the range.

In fact, if the trial judge had imposed thestatutory minimum sentence for each of the three offences consecutively, it would have amounted to 15 months total.

[ 41 ] The trial judge in his written reasons carefully considered the mitigating and aggravating circumstances at play. He noted that Mr. Benson was 18 years of age when the offences were committed and had no criminal record. He concluded that Mr. Benson was not the “best offender” and therefore did not warrant the minimum statutory sentence set out in ss. 163.1(3) and 163.1(4) of the Criminal Code . In coming to this conclusion, the trial judge noted: (

i) the large quantity of child pornographic material in Mr. Benson’s possession; (ii) the depravity of the sexual activity portrayed in the material; (iii) Mr. Benson’s admitted knowledge relating to computers and file sharing programs; and (iv) the fact that Mr. Benson’s “misconduct was deliberate, and done with full knowledge”. [ 42 ] It should also be noted that Mr. Benson’s trial counsel, who was not counsel on the appeal, did not oppose the probation order and the other ancillary orders made by the trial judge. [ 43 ] Mr.

Benson has failed to identify any error of principle or emphasis and has failed to establish that the sentence is demonstrably unfit. The sentence appeal is dismissed. V. Conclusion [ 44 ] The conviction appeal is dismissed. The sentence appeal is dismissed. Mr. Benson has been on judicial interim release since July 20, 2011. Since his conviction and sentence appeals have been dismissed, bail is now revoked. Mr. Benson will be required to present himself at the Saskatoon Correctional Centre by Thursday, January 26, 2012 at 4:00 p.m. in order to serve the remainder of his sentence.

DATED at the City of Regina, in the Province of Saskatchewan, this 23 rd day of January, A.D. 2012. “Herauf J.A.” ________________________ HERAUF J.A. I concur “Jackson J.A.” _______________________ JACKSON J.A. I concur “Richards J.A.” ______________________ RICHARDS J.A.