COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., MacPherson and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Bailey Butler-Antoine
Appellant
Bailey Butler-Antoine, acting in person
Lindsay Daviau, appearing as duty counsel
Andrew Hotke, for the respondent
Heard: June 1, 2020
On appeal from the convictions entered on May 10, 2018 by Justice Jane E. Kelly of the Superior Court of Justice.
REASONS FOR DECISION
1The appellant, Bailey Butler-Antoine, appeals his convictions for accessing, possession of, and distribution of child pornography, contrary to ss. 163.1(4.1), 163.1(4), and 163.1(3) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant abandoned his sentence appeal in oral submissions.
2On February 10, 2016, the National Centre for Missing and Exploited Children provided a report to police, which revealed that a video of child pornography was uploaded to, and made publicly available, on a website called "vid.me" a day earlier. Further investigation revealed that the IP address used to upload the video was associated with the appellant's residence.
3On May 17, 2016, a search warrant was executed at the appellant's residence. Following the search of a computer that the appellant conceded belonged to him, 63 videos of child pornography and 287 images were found in "plain sight" within files and folders on the computer. The images were described as "anime", a style of Japanese animation. An additional 102 videos of child pornography were located on the computer, but were not in "plain sight" (e.g., deleted).
4At trial, the appellant conceded that the videos constituted child pornography, but argued that the anime images did not. He denied that he accessed, possessed, or distributed child pornography. He did not testify, but adduced evidence, including testimony from his mother, that his computer was used by other people, including members of his household and visitors.
5The trial judge found that the videos and images constituted child pornography. She also found that, despite the defence evidence regarding the use and control of the computer, the only reasonable inference available on the circumstantial evidence was that the appellant had accessed, possessed, and distributed the child pornography.
6The appellant raises one issue on appeal: the trial judge erred in her application of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, by finding that guilt was the only reasonable inference available, despite having accepted the appellant's mother's testimony that other people had access to the appellant's computer. As part of his argument, the appellant submits that the trial judge mistakenly conflated the evidence that other people's use of the wifi password – which the appellant claimed was "occasional" in his statement to police – with their use of his computer, which was not "occasional", but more frequent.
7We are unable to give effect to the appellant's submissions.
8Where the evidence of identity at trial was circumstantial and the trial judge has found that the only reasonable conclusion available on the totality of the evidence was the accused's guilt, an appellate court may only interfere if the trial judge's conclusion was itself unreasonable. It "is fundamentally for the trier of fact to draw the line … that separates reasonable doubt from speculation": R. v. Youssef, 2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, aff'd 2018 SCC 49, [2018] 3 S.C.R. 259, quoting Villaroman, at para. 71.
9In this case, the trial judge dealt directly with the defence's evidence, including the statement given by the appellant to police at the time of his arrest, and the evidence given by his mother at trial. The trial judge acknowledged that, while much of the defence evidence corroborated the defence position, after looking at the evidence as a whole, she was satisfied beyond a reasonable doubt that the appellant had possession and control of his computer. She considered the fact that other people resided in or visited the home where the appellant lived, as well as the evidence of the appellant's mother that, at times, she enabled visitors to use his computer. She also considered and reconciled the evidence that there was a history on his computer of thousands of visits, at all times of day, to pornographic websites, including websites for "hentai", which is a subgenre of Japanese animation, characterized by overtly sexualized characters and plots. According to the trial judge, the evidence regarding the use of the computer by visitors did not give the impression that they would be accessing the computer at these times of day. Rather, the evidence suggested that the appellant had primary control over his computer, with others only having limited access. Based on the circumstantial evidence, the only reasonable inference to be drawn was that the appellant had control over his computer and that he accessed, possessed, and made available the child pornography through "vid.me". We see no error in this conclusion or in the trial judge's approach to the evidence.
10Accordingly, the appeal is dismissed.
"Alexandra Hoy A.C.J.O."
"J.C. MacPherson J.A."
"M. Tulloch J.A."