WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court Information

Court of Appeal for Ontario Date: 20211222 Docket: C67335

Parties and Counsel

Between: Her Majesty the Queen Respondent

And: J.T. Appellant

Counsel: Chris Sewrattan, for the appellant Molly Flanagan, for the respondent

Heard: November 24, 2021

On appeal from the conviction entered on June 10, 2019 by Justice Susan Chapman of the Ontario Court of Justice.

Reasons for Decision

[1]

Background

After receiving an alert that on May 28, 2017 child pornography had been transmitted from an identified Internet Protocol address (“IP address”) using a Skype file sharing program, Toronto Police obtained a search warrant for the residential address associated with that IP address. The residence was owned by JT’s parents. When the search warrant was executed on November 16, 2017, JT was discovered holding a computer tablet that belonged to him. A commercial movie was playing in full screen. A separate application containing child pornography was also opened on the computer tablet. Although the child pornography was not immediately visible on the screen, it could readily and easily be accessed because it was already opened.

2Det. Cst. Kidd of the Sex Crimes Unit, who was present at the time of the search, determined that the IP address at the residence had changed since the May 28, 2017 transmission.

3In the days that followed, a forensic examination of the computer tablet was conducted with the aid of forensic software that categorizes and analyzes images and videos. The images of child pornography that had been transmitted on May 28, 2017 were found on the device. Additional images of child pornography were located in the downloaded document files. The downloaded document files also contained documents that could be linked circumstantially to JT, and his user account and his email address were linked to the computer.

4JT was charged with several child pornography offences on a four count information. He was tried and convicted of possessing child pornography and making child pornography available. He appeals those convictions on two grounds, arguing: (1) that the trial judge erred by admitting expert evidence from Det. Cst. Kidd relating to the downloading of files without qualifying Det. Cst. Kidd as an expert (the “qualification error”); and (2) that the trial judge committed a Sekhon error, contrary to R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, by admitting and relying on anecdotal evidence from Det. Cst. Kidd (the “Sekhon error”).

5At the end of the oral hearing, we dismissed JT’s appeal for reasons to follow. These are our reasons.

[6]

The Qualification Error

The alleged “qualification error” relates to the admission of testimony by Det. Cst. Kidd, who was not qualified as an expert witness, that an IP address will change if the computer is disconnected from and then reconnected to the computer network. We are not persuaded that this testimony required expertise. This was mundane factual evidence about the operation of internet services that did not require specialized knowledge to observe or understand. Moreover, the parties agreed that no issue was taken with Det. Cst. Kidd’s “ability to speak to the contents of the computer and the forensic analysis of the computer, as it pertains to the activities on their computer … as it relates to the child pornography”, and no objection was taken to the evidence. We therefore dismiss this ground of appeal.

[7]

The Sekhon Error

The alleged Sekhon error relates to the admission and use by the trial judge of testimony from Det. Cst. Kidd that in his experience he had never seen child pornography end up on a computer in an automatic fashion, without having been placed there by user action. The trial judge relied on this evidence in rejecting JT’s suggestion that some of the documents could have been placed automatically into the downloads folder on the tablet.

8We are not persuaded that a Sekhon error occurred. Det. Cst. Kidd was not offering unnecessary and irrelevant anecdotal testimony about the guilt of other similarly situated offenders to support a finding that JT was also guilty of possessing or making available child pornography. When his impugned testimony is read in context, it is clear that Det. Cst. Kidd was simply relying on his experience to explain the technical operation of computers, specifically, that documents are not automatically downloaded by computers, but by human action.

9Nor did this evidence reverse the burden of proof by requiring JT to show that his state of mind or conduct was different than the state of mind or conduct of other alleged offenders. As indicated, Det. Cst. Kidd’s evidence related to the technical operation of computers and did not purport to speak directly to the elements of the offence, as was the case in Sekhon.

10Nor do we agree with the submission made on JT’s behalf that there would be no realistic way to counter this evidence other than by searching for and calling competing anecdotal evidence from an investigator who had experienced the automatic downloading of documents onto a computer. If it is true that Det. Cst. Kidd was incorrect and there are indeed ways that documents can automatically be downloaded onto a computer, any admissible technical evidence relating to the operation of computers could have been called to challenge his testimony.

[11]

Disposition

The appeal is therefore dismissed.