Docket: CACR2190 Her Majesty the Queen Appellant - v. -, 2013 SKCA 99

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 99 Date: 2013-09-18 Between: Docket: CACR2190 Her Majesty the Queen Appellant - and - Chris Allen Jacques Respondent Between: Docket: CACR2200 Chris Allen Jacques Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Klebuc and Herauf JJ.A. Counsel:

Jerome Tholl for the Crown Aaron Fox, Q.C. for Chris Allen Jacques Appeal: From: 2012 SKQB 277 Heard: June 4, 2013 Disposition: CACR2190 – Appeal allowed CACR2200 – Appeal dismissed Written Reasons: September 18, 2013 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Herauf Richards C.J.S. I. introduction [ 1 ] The appellant, Chris Jacques, was convicted of knowingly possessing child pornography. He was acquitted of accessing child pornography and making child pornography available. [ 2 ] Mr.

Jacques appeals his conviction on the possession charge. The Crown appeals his acquittal on the charge of accessing child pornography. [ 3 ] These proceedings arise out of circumstances where, using a file sharing network, the police located child pornography on a computer in Mr. Jacques’ home and downloaded it. A search warrant was then obtained for the home and the police seized the computer. A forensics expert was able to locate child pornography in one of its hard-drives. [ 4 ] The trial judge concluded that Mr. Jacques was the dominant user of the computer and convicted him on the possession charge.

She acquitted him on the accessing charge because, while the indictment alleged he had committed the offence between two specific dates, the evidence did not disclose when he had accessed the pornography. Mr. Jacques was also acquitted on the charge of making child pornography available because the trial judge had a reasonable doubt as to whether he had known that he was file sharing. [ 5 ] Mr. Jacques now contends that the conviction on the possession charge was unreasonable because the trial judge made errors in dealing with the evidence.

He also says the judge reversed the burden of proof by effectively requiring him to establish that he was not responsible for the pornography found on the computer. On its appeal from the acquittal on the accessing charge, the Crown says the dates referred to in the indictment were not an essential element of the offence and that the trial judge erred in entering an acquittal merely because the evidence did not prove when Mr. Jacques had accessed the pornography. [ 6 ] I conclude, for the reasons set out below, that Mr. Jacques’ appeal must be dismissed.

The conviction was not unreasonable in light of the evidence and the trial judge did not reverse the burden of proof on the possession charge. I also conclude that the Crown’s appeal on the accessing charge must be allowed. The date on which the pornography was downloaded was neither an essential element of the offence nor important to Mr. Jacques’ defence. II. BAckground [ 7 ] The evidence presented at trial indicates that LimeWire software allows users to search for, locate and download files from the Gnutella file sharing network.

Once a file is located by the LimeWire user, the user can then choose to download a copy of the file to his own computer. Any file that a user of LimeWire downloads to his or her computer is then available for all other users on the Gnutella network to search and download. Such files are located on the computer hard-drives of the users of the network, rather than on a central server. [ 8 ] Sgt. Darren Parisien is a Saskatoon City police officer. In 2009, he was assigned to the Internet Child Exploitation Unit. On September 23, 2009, Sgt.

Parisien consulted a police database of IP addresses that had been previously identified by other investigators as revealing potential suspects in child pornography offences. He selected an IP address that was located in Saskatchewan (the “IP Address”). It was subsequently determined to be registered to Mr. Jacques and his wife. [ 9 ] Sgt. Parisien accessed a list of the files that were available to be shared from a computer located at the IP Address. LimeWire software was actively running on the computer. This meant that any person who was using LimeWire or a similar program could access

the same files Sgt. Parisien was accessing. Sgt. Parisien sent a browse request to the computer and the computer returned a list of the names of 81 files that it was sharing. [ 10 ] The file names returned to Sgt. Parisien contained terms which indicated to him that some of the files might contain child pornography. Those terms included “13 YO,” “12 YO,” “PTHC,” “pedo,” “underage,” “illegal” and “preteen.” The term “PTHC” was known to him to stand for “Pre-Teen Hard-Core.” [ 11 ] Of the 81 files that the computer was sharing, one was a video and the remaining 80 were photographs. Sgt.

Parisien identified for downloading some files for which the hash values matched the hash values in a database of known child pornography. (Each file has a unique hash value which reliably identifies the file and distinguishes it from any other file that is even minutely different.) [ 12 ] Sgt. Parisien then successfully downloaded one file containing child pornography from the computer. Based on his experience and expertise, Sgt. Parisien testified at trial that, because he was able to successfully download one file from the computer, he would have been able to download all 81 files had he chosen to do so.

However, he could not say whether Mr. Jacques, or anyone, was physically present at the computer at the time the file was downloaded. [ 13 ] Sgt. Parisien viewed copies of six files from the computer which he had identified as known child pornography by virtue of their hash values. He also viewed the one file he had downloaded. In viewing the files, which consisted of images, it was apparent to him that they were child pornography. [ 14 ] Sgt. Parisien had a fellow officer obtain the details for the IP Address and determined it was registered to Mr. Jacques and his wife. Sgt.

Parisien then obtained a search warrant for their residence. [ 15 ] The residence was searched on December 2, 2009. Among other things, the police seized a Dell computer. It was found in a loft area where the bedroom of Mr. Jacques and his wife was located. [ 16 ] Cst. Joel Bautista, a Saskatoon Police Service member and an expert in computer forensics, examined one of the hard-drives located on the computer (the “Hard-Drive”). [ 17 ] Cst. Bautista testified that only files in allocated space are accessible to an ordinary computer user.

He did not find any child pornography in the allocated space on the Hard-Drive. However, using forensic tools, Cst. Bautista located images and videos that had been deleted from the Hard-Drive. These were located in the unallocated space and the file slack space of the Hard-Drive. Unallocated space is space that has not yet been over-written by new data after a file is deleted. File slack is the space left behind on a hard-drive when a file is deleted and is replaced by a smaller file, leaving part or all of the original file still on the hard-drive in the space the new file does not use. Cst.

Bautista carved out these images and videos and provided them to Cpl. Candace Benko. [ 18 ] Cpl. Benko, a Regina Police Service member who was also a member of the Internet Child Exploitation Unit, reviewed the files from the Hard-Drive. She identified 15 images and 10 videos of child pornography. [ 19 ] In addition to locating the images and videos on the Hard-Drive, Cst. Bautista located file names, either in the file slack space or unallocated space, containing terms associated with child pornography. These files had once existed in the same “DL” directory where downloads from LimeWire were set to be saved.

One of these files matched the hash value of one of the files that Sgt. Parisien had determined was being shared on September 23, 2009. [ 20 ] Cst. Bautista located the same version of LimeWire, with its Globally Unique Identifier (“GUID”), that had been identified by Sgt. Parisien as sharing files with him on September 23, 2009. The LimeWire software was last used the day before the search warrant was executed. [ 21 ] Cst. Bautista determined the settings on the LimeWire software had been varied from the default settings.

Someone had changed the maximum uploads from 20 down to one, had changed the number of uploads per person from three down to one, had disabled partial sharing, had increased the download settings and had also created a directory called “DL.” Some of these changes had the effect of reducing the flow of uploads that could come from the computer, but it did not turn off the flow completely. [ 22 ] There was no password required to access the computer. However, at trial, the trial judge found Mr.

Jacques to have been the dominant user of the computer because, among other things, he had purchased it, it was located in his bedroom area, he had installed LimeWire on it, he had created the DL folder and he had changed the LimeWire settings. [ 23 ] On December 2, 2009, Mr. Jacques was asked to attend the RCMP depot in his town. Once there, he participated in a warned interview. In the interview, Mr. Jacques admitted that his primary computer was the one found in the bedroom area of his home.

He also admitted having searched the term “PTHC.” When asked whether the police would find any files that were downloaded as a result of PTHC searches, Mr. Jacques replied, “You won’t find one of them…They’re all deleted….” In connection with the issue of whether Mr. Jacques had a collection of child pornography, the investigating officer stated, “It was download, viewed, gone” and Mr. Jacques answered, “Exactly…That’s exactly what it was…Every time.” Mr. Jacques indicated at several points in the interview that he was not proud of what he had done. [ 24 ] Mr.

Jacques was charged that, between September 23, 2009 and December 2, 2009, he: (

a) possessed child pornography, contrary to s. 163.1(4) of the Criminal Code ; (

b) accessed child pornography, contrary to s. 163.1(4.1) of the Criminal Code ; and (

c) made available child pornography, contrary to s. 163.1(3) of the Criminal Code . [ 25 ] Mr. Jacques testified at the trial. He indicated that he had typed the search term “PTHC” into LimeWire but had done so only once

and not liked the images that had come up. He said he had immediately deleted the images and had nothing to do with such thingsagain. He said that, when being interviewed, he had decided to tell the RCMP investigator what he thought the officer wanted to hear inorder to end the interview. He took the position that some of the admissions he had made in the warned statement were not truthful. Healso said that the references in the interview that appeared to be about child pornography were in fact references to bestiality.

Mr.Jacques indicated that he had no recollection of what he was doing on September 23, 2009 but believed he was likely working in a shopoutside of his house or in the yard. III. THE TRIAL DECISION [26] The trial judge reserved her judgment at the end of the trial and delivered her reasons for decision a month later. See: 2012 SKQB277. She began by reviewing the evidence in some detail and then proceeded to analyze the various issues which had presentedthemselves. [27] There had ultimately been no issue as to whether the suspect computer found in Mr.

Jacques’ bedroom area was the one which hadshared child pornography with Sgt. Parisien on September 23, 2009. However, Mr. Jacques argued that it could have been used by anumber of people including a friend, relatives or his children. In response to this, the trial judge said she was satisfied that Mr. Jacqueswas the “dominant user” of the computer and that there was no air of reality to the idea that someone else had downloaded the childpornography files. [28] There was also an issue concerning Mr. Jacques’ level of familiarity with computers.

The trial judge found that he was “verycomfortable with the workings of his computer and with the associated technology” and “not a novice with computers.” [29] In convicting Mr. Jacques on the charge of possessing child pornography, the trial judge wrote as follows: [56] I am satisfied the evidence establishes beyond a reasonable doubt that the child pornography shared with Sgt. Parisien wasdownloaded by the LimeWire application installed by the accused. In the unlikely event, child pornography files were on the hard drivebefore LimeWire was installed, the installation process would have uncovered them.

The seven files received by Sgt. Parisien from theaccused on September 23, 2009, are all child pornography. Their file names prevent them from being mistaken for anything else.Moreover, while Sgt. Parisien was downloading from the accused, the accused was actively downloading other files that appear fromtheir names to be child pornography. The accused could not have been mistaken about the type of files he was downloading. [30] With respect to the charge of making child pornography available, the trial judge acquitted Mr.

Jacques and explained her keyreasoning in these terms: [54] I must be satisfied beyond a reasonable doubt that the accused was aware he was sharing this file, or the other six for that matter,or that he was wilfully blind about doing so. I am not. The accused had gone to some trouble to turn off file sharing and to delete files. Ibelieve he deleted files in order not to share. Therefore, I accept that the accused took steps to prevent sharing, although those steps werenot successful. [31] Finally, the trial judge entered an acquittal on the accessing charge.

She did so, as explained above, on the basis that the evidencedid not show Mr. Jacques had accessed child pornography during the time period specified in the indictment. She said this: [59] On the charge of accessing child pornography, there must be evidence the accused knowingly caused child pornography to beviewed by, or transmitted to, himself between September 23, 2009 and December 2, 2009. The only evidence of viewing or transmittalbetween those dates is the downloading by the accused on September 23, 2009 while Sgt.

Parisien was downloading from him.However, the Crown has not proven those files were actually child pornography, although the files names suggest that they were. IV. analysis [32] As explained at the outset, this appeal has two wings: (

a) Mr. Jacques’ appeal from his conviction on the charge of possessingchild pornography, and (

b) the Crown’s appeal with respect to the trial judge’s decision to acquit Mr. Jacques on the charge of accessingchild pornography. I will deal with each of these matters in turn. A. The Charge of Possessing Child Pornography [33] Mr. Jacques submits that the trial judge made a number of errors in her treatment of the evidence bearing on the possessioncharge. He says these errors resulted in an unreasonable conviction. [34] The principles which govern an argument of this sort are well-established. This Court’s ability to overturn a conviction pursuant tos. 686(1)(a)(

i) of the Criminal Code on the basis of its reasonableness is circumscribed. It is not entitled to simply re-make the decisionof a trial judge or to substitute its assessment of the evidence for the assessment of the trial judge. All of this was recently reconfirmedby the Supreme Court of Canada in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9, where Deschamps J., on behalf of theCourt, wrote as follows: To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC), [1987]2 S.C.R. 168, and R. v.

Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properlyinstructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge hasdrawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial

judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted orrejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190). [35] With those principles in mind, let me turn to the particulars of Mr. Jacques’ submissions. His first concern is that the trial judgedismissed the possibility of someone other than him being responsible for the presence of the child pornography on the computer.

Hesuggests that the trial judge’s reasoning was along the line that, because he was the “dominant user” of the computer, the pornographywas not placed on the computer by anybody else. Mr. Jacques says that, unless he was found to have been the “exclusive” user of thecomputer, it is entirely possible that someone other than him was involved. The other candidates in this regard were his wife, hischildren, a friend who sometimes assisted with computer issues and his parents. (This line of argument engages the sort of“reasonableness” issue addressed by R. v.

Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.) [36] Moreover, Mr. Jacques also questions the conclusion that he was, in fact, the dominant user of the computer. He says that theconsiderations referred to by the trial judge on this issue merely indicate he was a user of the machine, not that he was the “dominant”user. Overall, Mr. Jacques says the trial judge effectively shifted the burden of proof so that he had to establish he was not using thecomputer on September 23, 2009 and that the child pornography had not been in his possession. [37] I do not accept this argument.

As indicated, there was no dispute at trial about whether the computer had contained childpornography. The issue on the possession charge was whether Mr. Jacques was the person who had been in possession of thepornography. The fact that he was the dominant user of the machine was relevant to this question. Dominant use obviously did notprove, in and of itself, that Mr. Jacques had possessed the pornography but it did make that more likely and put Mr. Jacques in a differentposition than, for example, his parents who had little access to the computer and limited computer skills.

In my view, this was all thetrial judge intended when she described him as being the dominant user. I do not understand her to have somehow proceeded on thisbasis that, because he was the dominant user, Mr. Jacques would be found guilty of the possession charge unless he could show that hehad not been in possession of the pornography. There was no reversal of onus on this issue. [38] On the related point of whether Mr. Jacques actually was the dominant user of the computer, I am again unpersuaded by hissubmissions. Mr. Jacques purchased the computer.

It was located in his loft-bedroom area in the house where he lived. He admittedthat it was his “primary” computer. He installed LimeWire on it. He arranged for his friend to manipulate the LimeWire setting tospeed up downloads. He used LimeWire to download files and he created the “DL” folder to store downloads. Further, the computeralso had a background picture of a pickup truck and an SUV, contained numerous images of rusty car parts and had a DVD traycontaining an instructional video pertaining to car mechanics. This was of at least some significance because Mr. Jacques was trained asa journeyman mechanic.

In light of all of this, it was open to the trial judge to find that Mr. Jacques was the dominant user of themachine. Indeed, at para. 5 of his factum filed in this appeal, Mr. Jacques himself says, “It is acknowledged that it was open to the trialjudge to conclude that [I] was the dominant user of the computer.” [39] Mr.

Jacques’ second submission as to the reasonableness of the possession conviction concerns the trial judge’s conclusion that hewas “not a novice with computers.” As a more particular aspect of this submission, and referring to para. 47 of the trial decision, he saysthe judge’s observation that the LimeWire setup was “performed by, or at [his] direction” does not establish any expertise on his part. Mr. Jacques argues that, if LimeWire had in fact been installed by his friend, he would not have personally needed any knowledge orexpertise at all to have the program put in place. Mr.

Jacques also denies that he required any advanced level of expertise to download,as he did at one point, a version of LimeWire. [40] I do not see this as amounting to a telling argument either. The reality is that, in the course of his testimony, Mr. Jacques did reveala familiarity with computers. He testified that he installed LimeWire. He knew that LimeWire was a file sharing network, that it wasused to search for and download files from the internet and that LimeWire users, by default, shared their files. After his friend hadchanged the settings to allow maximum downloads and to modify uploading capacity, Mr.

Jacques was able to check the computer toconfirm that this had been done. In his cross-examination, he said that he had personally changed the setting for the number of allowableuploads per person. Mr. Jacques was also able to speak about concepts like “uploads,” “downloads,” “bandwidth” and “hard drives”with apparent ease. Overall, it is self-evident that, to use the words of the trial judge, Mr.

Jacques was “not a novice with computers”and that he was “very comfortable with the workings of his computer and with the associated technology.” I see no error in the trialjudge’s assessment of the evidence on this particular point. [41] Third, Mr. Jacques takes issue with the trial judge’s statement that “[i]t is apparent that [Mr. Jacques] was using LimeWire up untilhis arrest on December 2, 2009, as the last use of the suspect application of LimeWire was on December 1, 2009.” Mr.

Jacques says thiswas pure speculation on the part of the trial judge as there was no direct evidence indicating who had been using LimeWire onDecember 1, 2009 or on any other date. [42] Mr. Jacques is correct that there was no direct evidence tying him to the use of the computer on the dates when the childpornography was shared. However, I do not understand the trial judge to have suggested otherwise. Rather, I read this part of thejudge’s decision as saying only that, in light of the whole of the evidence, she was prepared to infer that Mr. Jacques had used LimeWireup until the date of his arrest.

This was a reasonable conclusion for her to draw. [43] Fourth, Mr. Jacques takes issue with what he apparently sees as the implications of the trial judge’s statement that the childpornography shared with Sgt. Parisien had been “downloaded by the LimeWire application installed by the accused.” He says that theact of installing LimeWire would not have given him knowledge about all of the files subsequently downloaded using that program. [44] This argument is also to no effect. Simply put, the trial judge did not say or find that, because he had installed LimeWire,Mr.

Jacques knew about all of the files downloaded by virtue of that application. This was not part of her line of reasoning. [45] Finally, and while not going directly to the question of the reasonableness of the conviction, Mr. Jacques stresses that the caseagainst him was wholly circumstantial. He suggests the trial judge’s analysis of the evidence was flawed because she did notacknowledge this fact, did not refer to the framework of analysis mandated by R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742

and did not adequately explain how she was satisfied beyond a reasonable doubt that his guilt was the only rational inference that could be drawn from the evidence of a whole. [ 46 ] I am not prepared to accept this line of attack either. In my view, the trial judge did not misapprehend the general framework of analysis which she was required to apply to the charges in issue.

Nor did she otherwise err with respect to the broad principles that informed her approach to the possession charge. [ 47 ] First, it should not be a surprise that the trial judge did not refer directly in her reasons for decision to the circumstantial nature of some of the evidence presented by the Crown. This is because that point did not feature in the arguments presented to her by counsel. More importantly, of course, the case against Mr. Jacques was not wholly circumstantial. As discussed in more detail below, Mr.

Jacques participated in a warned interview with the police and, during the course of that interview, made a number of incriminating admissions. The interview was part of the Crown’s case and it was relied on heavily by the prosecutor in his submissions to the trial judge. [ 48 ] Second, the trial judge was obviously conversant with W.(D.). When Mr.

Jacques’ trial counsel (who is not his counsel on this appeal) offered to provide her with a copy of the W.(D.) decision during the course of his final argument, she assured him that she was “very familiar” with that case and jokingly asked counsel if he would like her to recite it from memory. While she did not refer expressly to W.(D.) in her decision, her analysis was consistent with the principles spelled out in that case. [ 49 ] Third, as noted above, the trial judge did not find Mr.

Jacques to have been the dominant user of the computer and then, in effect, assume he was in knowing possession of the pornography unless he could prove otherwise. As I read her decision, the trial judge fixed the Crown with the burden of proving the offence beyond a reasonable doubt and maintained that focus throughout the course of her analysis. [ 50 ] In any event, the central flaw in Mr. Jacques’ arguments about the reasonableness of his conviction on the possession charge is that they fail to take adequate account of what he said during the course of his warned interview.

There is considerable merit in an argument that, in the absence of the interview, the evidence would not have reasonably supported a conviction. However, the reality is that Mr. Jacques did speak with the police and did make several important admissions. [ 51 ] A fair reading of the transcript of the police interview leads to the conclusion that Mr. Jacques admitted to possessing child pornography. He did this first by virtue of admitting to deleting pornography of this sort from the computer, i.e. in order to knowingly delete the pornography, he had to first possess it. More specifically, when Mr.

Jacques was asked in the interview whether the police would find files downloaded as a result of his “PTHC” searches, the following exchange took place: Cpl. BERNARD: Files say that you downloaded as a result of PTHC search, okay? Are those files deleted or are we going to find that they…? Chris JACQUES: You won’t find one of them. Cpl. BERNARD: Okay. Chris JACQUES: They’re all deleted. Cpl. BERNARD: They’re all deleted? Chris JACQUES: Which they will find in my… in my hard drive, in the recycle bin. [ 52 ] Mr.

Jacques suggests that this conversation was a reference to material concerning bestiality, not child pornography. The trial judge rejected this characterization of his comments at para. 35 of her decision by saying “It is clear [Mr. Jacques] was talking about child pornography.” On my reading of the transcript, the trial judge’s conclusion on this point was not just reasonable, it was correct. Considered in the light of the nature, flow and detail of the interview, it is readily apparent that Mr.

Jacques was telling the interviewing officer that he had deleted the results of “Pre-teen Hard-Core” searches. [ 53 ] Mr. Jacques also admitted to accessing, downloading and viewing child pornography in the following interview exchange: Chris JACQUES: … I can honestly tell you I have never had a thought… impure thought about my daughter in my life. Cpl. BERNARD: Okay. What about any other child?

Chris JACQUES: Nobody’s children. Cpl. BERNARD: ‘Kay. Other than… and n… nobody s… nobody in real life. So, other than anything that was looked at on the internet, it’s… Chris JACQUES: That’s a… that’s as far as it went. Cpl. BERNARD: ‘Kay. Chris JACQUES: That’s… there’s no files stored. There’s no files kept. There’s nothing… secret compartments or anything. … Cpl. BERNARD: It was download, viewed, gone. Chris JACQUES: Exactly. Cpl. BERNARD: Okay. Chris JACQUES: That’s exactly what it was. Cpl. BERNARD: Alright. Chris JACQUES: Every time. [ 54 ] In addition, Mr.

Jacques indicated at more than one point during the interview that he was not proud of what he had done and that he wanted help and would seek it. As I read the transcript, these comments were made in reference to child pornography. For example, he said this: Cpl. BERNARD: Okay? If that… but they’re gonna have questions for your wife, right? If that’s what this is, then I think that you’re missing the opportunity to say, “You know what? Okay, so… I downloaded… looked at some child porn and yeah and I… and I searched PTHC and I searched whatever and that’s all there is to it.

That you’re… Chris JACQUES: That’s… that’s what it was. Cpl. BERNARD: You know? Chris JACQUES: I’m not proud of it. I really will seek help for it. … Chris JACQUES: I do want help.

… Chris JACQUES: … I could talk to. I’d definitely seek… seek counselling… Cpl. BERNARD: ‘Kay. Chris JACQUES: … for sure. I’m not proud of this. I mean… Cpl. BERNARD: No. Chris JACQUES: … I’m not proud at all but all I can say is, there is no threat, honestly with my children, anybody’s children. Iknow it’s wrong. These people… these are somebody’s children too. [55] Mr. Jacques’ counsel in this Court criticizes the techniques used by the police during the course of the warned interview and saysthat the interviewing officer manipulated Mr.

Jacques by questioning him at length and suggesting that, in effect, he would only believethat Mr. Jacques was not a paedophile if he confessed to downloading child pornography. The problem with this line of attack, ofcourse, is that trial counsel did not contest the admission of the interview transcript. It is thus before the Court and, indeed, Mr. Jacquesquite properly does not suggest otherwise. [56] In the end, the question raised by Mr.

Jacques’ appeal is not whether it is possible to find some weakness either in the trial judge’shandling of individual pieces of evidence regardless of their significance, or in the small particulars of the language she used in dealingwith the evidence. Given the arguments presented to the Court, the central question is whether a trial judge, acting reasonably and on thebasis of the evidence as a whole, could have entered a conviction on the charge of possessing child pornography. See: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.

The answer to that question is “yes” and, as aresult, Mr. Jacques’ appeal from his conviction must be dismissed. B. The Charge of Accessing Child Pornography [57] The Crown submits that the trial judge erred by acquitting Mr. Jacques on the charge of accessing child pornography merelybecause the evidence did not establish that he had accessed it within the timeframe specified in the indictment. [58] In order to properly understand this submission, it is necessary to recall that the indictment alleged Mr.

Jacques had accessed childpornography “[b]etween September 23, 2009 and December 2, 2009.” Count 2 was framed as follows: Between September 23, 2009 and December 2, 2009, at or near Esterhazy, Saskatchewan, did access child pornography contrary toSection 163.1(4.1) of the Criminal Code. [59] In dealing with this matter, the trial judge seems to have had little difficulty concluding that Mr. Jacques had accessed childpornography but, as noted, she acquitted him because the Crown had not proven when he had done so. She said this at para. 60 of herdecision: “Clearly, he accessed the files shared with Sgt.

Parisien, but it is not in evidence when he did so.” [60] I agree with the Crown that the trial judge erred in taking this approach to the accessing charge. In fairness to her, the governinglaw was not brought to her attention but this, of course, is not a circumstance which overcomes the error. [61] Section 601(4.1) of the Criminal Code is directly relevant here. It provides that a variance between the evidence and an indictmentwith respect to the time when an offence was committed is not material. Section 601(4.1) reads as follows:

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribedperiod of limitation, if any; or … [62] The leading Supreme Court decision on this issue is R. v. B.(G.), (SCC), [1990] 2 S.C.R. 30. It concerned asexual assault which was alleged in the information to have taken place “[o]n or between the 2nd day of December A.D. 1985 and the20th day of December A.D. 1985.” The trial judge acquitted B.(G.) on the basis that the evidence had not established the date of theoffence. This was found to have been an error.

Wilson J., writing for the Supreme Court of Canada, referred to the then equivalent ofthe present s. 601(4.1) of the Code and called it a “complete answer” to B.(G.)’s submissions. Wilson J. then proceeded to review the

common law jurisprudence concerning situations where there is a variance between the indictment and the evidence in relation to thedate of the offence. She approved Ewaschuk J.’s

summary of the longstanding common law rule, as he had set it out at para. 9:10050 ofhis text Criminal Pleadings & Practice in Canada, 2nd ed. (Aurora: Canada Law Book, 1987): From time immemorial, a date specified in an indictment has never been held to be a material matter. Thus the Crown need not provethe alleged date unless time is an essential element of the offence or unless there is a specified prescription period…. [63] By way of examples of situations where time would be an essential element of the offence, Wilson J. referred to a number ofcases. These included R. v.

Hamilton-Middleton (1986), (SK CA), 53 Sask. R. 80 (C.A.) where the accused wascharged with theft in connection with taking food and clothing. She defended herself on the basis that she had received permission totake the goods and the evidence was to the effect that, at one time, she in fact did have permission to take such items but that thepermission had been retracted at some point. There was nothing in the evidence to establish whether the goods were taken before orafter the permission was withdrawn and it was held that time was an essential element of the offence. Wilson J. also noted R. v.

McCraeand Ramsay (1981), (MB KB), 25 Man. R. (2d) 32 (Co. Ct.), where the accused were acquitted of operating anaeroplane without proper statutory authorization on the basis that the conviction turned on the question of whether they had held validcertificates during a particular period of time.

As well, Wilson J. referred to situations where an accused defends a charge by providingevidence of an alibi for the date or time period alleged in the indictment and described those types of cases as being ones where the datesspecified in the charge would be crucial to the defence. [64] In summarizing the proper approach a judge must take when the evidence has not proven that an offence was committed on thedate specified in the indictment, Wilson J. said this at p. 53: Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or theinformation conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offenceor crucial to the defence.

It will only be in cases where this first question is answered affirmatively that the trier of fact must thendetermine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in thenegative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown’s case isproven beyond a reasonable doubt. [65] In the present circumstances, the date when Mr. Jacques accessed child pornography was not an essential element of the offenceand he does not suggest otherwise.

Accessing child pornography is a crime regardless of when it occurs. However, Mr. Jacques doesmaintain that it would be prejudicial to convict him with respect to any accessing of child pornography that took place outside of the timeperiod referred to in the indictment. [66] I am not persuaded that the dates included in the indictment were in any way crucial to Mr. Jacques’ defence. He did not defendthe accessing charge by calling evidence to establish that he had not accessed child pornography only between the dates specified in theindictment.

Rather, his evidence was that, but for once unknowingly downloading child pornography after searching the term “PTHC,”he had never accessed such pornography at any time. This is revealed in the transcript. In his examination in chief, Mr. Jacques testifiedas follows: Q Okay. You spoke to counsel. Corporal Bernard comes back. And then at a point in time, and I’m referring to page 16 in thetranscript, you were advised by Corporal Bernard: Okay, I know by being in your house today and from talking to you for a little bit that you viewed and downloaded some child pornfiles. Okay? Had you done that? A No, I had not.

Q Other than the one time that -- and let’s go back to it. You say you saw the PTHC come on a pop-up while you were on an adult site? A Correct. … Q Okay. Did you know or have any idea at all what PTHC meant? A No, and that was the purpose behind me typing it on LimeWire. …

Q Do you know what the search word, Lolita, means? A Not really. Q Have you ever typed it in? A No, sir. Q Do you know what the term, hussyfan, means? A Not a clue. Q Have you ever used that as a search word at any time? A No, I haven’t. Q And at any time since the incident that you told us about, when the pop-up came and several days later you checked to see what it was, have you accessed child pornography in any way, shape or form -- A No, I haven’t. Q -- or downloaded any? A No. … Q What sorts of files did you download from LimeWire?

A Mostly music files, some movie files, but it was mostly classic -- classic rock music that I listen to. Q Was any of it child pornography? A None. None whatsoever. … Q You were charged that between September 23rd and December 2nd, 2009, at or near Esterhazy, you did access child pornography, contrary to the Criminal Code . Did you knowingly access child pornography at any time? A No, I did not. [ 67 ] In cross-examination, Mr. Jacques testified to the same effect: Q Okay. So the file you downloaded said PTHC, and then a whole bunch of -- A It was like -- yeah, I don’t remember.

There was three or four numbers after it. Q And is your evidence in court today, Mr. Jacques, that you typed that in one time in your life on LimeWire? A That’s correct. …

Q Did you ever accidentally download a file that appeared to be child pornography? A No, I hadn’t. … Q You’ve testified in court you’ve only ever seen one image before court proceedings of child pornography? A Correct. … Q -- because of course your evidence today in front of this court under oath, Mr. Jacques, is that one time in your life you typed PTHCon LimeWire, selected one file, viewed it, and instantly deleted it? A Correct…. [68] It is true that, in his argument at the conclusion of the trial, Mr. Jacques’ trial counsel referred to the fact that the evidence did notdisclose when downloads had taken place.

As well, counsel did point to the date on which, in his testimony, Mr. Jacques had admitted toonce having entered the search term “PTHC” and he indicated that the date was outside of the timeframe specified in the indictment. However, at the same time, and at the very end of his submissions, trial counsel stressed that “[Mr. Jacques] states he had neverknowingly intended to access child pornography.” [69] Thus, overall, it cannot be said that the dates specified in the indictment were important to Mr. Jacques’ defence.

His position wasthat he had never knowingly downloaded child pornography and there is nothing in the record to suggest that the evidence presented onhis behalf was put forward with a view to establishing only that he did not access pornography between September 23, 2009 andDecember 2, 2009. Further, no explanation has been given to the Court as to the additional evidence that Mr. Jacques could or wouldhave called to defend himself against allegations of accessing child pornography outside of the September 23, 2009 to December 2, 2009time bracket.

It is appropriate to note, additionally, that the Crown’s case with respect to accessing child pornography was not open-ended. It was common ground that the computer had been purchased by Mr. Jacques in August of 2007 and it seems to have beenaccepted that Mr. Jacques did not install LimeWire on the machine until six or eight months after that date. It follows that the broadestpossible time span in issue was from early 2008 to December of 2009. Moreover, the Crown identified the specific images on which itscase was based. [70] In the end, this appeal is much like R. v. B.(G.), supra.

There, in dealing with the importance to the defence of the date of theoffence, Wilson J. noted that at trial the accused had put forward only general denials. On that basis, she concluded that the date was notcrucial to the defence. The same reasoning applies here. See also: R. v. S.D., 2011 SCC 14, [2011] 1 S.C.R. 527. [71] It follows, therefore, that the Crown’s appeal on this point must be allowed.

Given the trial judge’s finding of fact that Mr.Jacques had accessed child pornography and the positions taken by counsel, a conviction should be entered pursuant to s. 686(4) of theCode. [72] All of this said, the Crown submits that any conviction on this charge should be stayed pursuant to the principle stated in R. v.Kienapple, (SCC), [1975] 1 S.C.R. 729 with the stay being conditional on whether an acquittal or new trial on thepossession charge might be granted on further appeal, i.e. the stay would be lifted if the possession conviction should be set aside.

Without necessarily passing one way or the other on the merits of the application of Kienapple in this circumstance, I am prepared tomake that order. V. Conclusion [73] Mr. Jacques’ appeal from his conviction on the charge of possessing child pornography is dismissed. The Crown’s appeal fromthe acquittal on the charge of accessing child pornography is allowed and a conviction is entered on that charge. However, theconviction is stayed. Mr. Jacques is presently on bail pending this decision. He is hereby ordered to present himself to his local RCMPdetachment within 24 hours of the issuance of this decision.

DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of September, A.D. 2013.

“Richards C.J.S.” Richards C.J.S. I concur “Richards C.J.S.” for Klebuc J.A. (as per authorization) I concur “Herauf J.A.” Herauf J.A.