Christopher Biscoe

Criminal trial concerning child pornography offences arising from peer to peer LimeWire activity, forensic examination of seized computer equipment, and storage of files on compact disks.

The court applied the W. (D.) framework, rejected the accused’s explanations involving hackers, viruses, and unauthorized access, and found beyond a reasonable doubt that he knowingly possessed, accessed, and made child pornography available through the shared folder of his file sharing program.

The court accepted expert evidence linking the monitored IP address and GUID to the seized laptop and inferentially found deliberate downloading and movement of files to disks.

On the making count, however, the court adopted the reasoning that copying pre-existing child pornography onto disks for personal collection did not constitute “making” under s. 163.1(2).

On an application in a child pornography prosecution, the accused sought exclusion of statements made during the execution of a residential search warrant, during booking, and in a later videotaped interview, as well as exclusion of CDs, DVDs, and derivative data.

The court held the warrant was not overly broad and validly authorized seizure of computer media, including CDs and DVDs, in the circumstances of an internet file-sharing investigation.

However, the police breached s. 10(b) by eliciting a statement about CDs without properly implementing the right to counsel, by failing to hold off during booking after the accused said he did not wish to speak to a lawyer “at the moment,” and by failing to provide a further opportunity to consult counsel when the accused’s jeopardy materially increased at the videotaped interview.

Applying the s. 24(2) framework, the court excluded those statements but admitted the initial spontaneous utterance and the physical media evidence.