Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Allan Hughes
Before: Justice P.K. Doody
Heard: August 21-23, 2017
Reasons for Judgment Released: September 28, 2017
Counsel:
- Hart Shouldice, for the Crown
- Bruce Engel and Kevin Weinstein, for the defendant
DOODY J.:
Part 1: Background
1Michael Hughes ("the defendant" or "Mr. Hughes") is charged with possessing child pornography on March 11, 2015.
2He had been charged with distributing child pornography, possessing child pornography, and accessing child pornography, all on October 27, 2014. The first of these charges was withdrawn at the request of the Crown before plea. The last two were dismissed on request of the Crown at the end of the Crown's case.
3On March 11, 2015, child pornography was found on three computers: a desktop computer found in Mr. Hughes' home; an iPad located in his home; and a laptop computer which was seized while in the defendant's possession at Algonquin College.
4Each of these devices was lawfully seized and searched under the authority of a search warrant.
5A total of 1,288 images and 196 videos, all constituting child pornography, were located among the three devices. 20 images were on the iPad; 1,171 images and 193 videos were on the desktop; and 97 images and 3 videos on the laptop.
6None of these were introduced into evidence. Nor was there any evidence which described them other than that at least two of the images on the desktop involved children in diapers. There was an agreement between the Crown and defence that all of the images and videos were child pornography as that term is defined in the Criminal Code.
7The images and videos were discovered by the police by searching the hard drives for the presence of "key words". The words used were words which were either web sites which contained child pornography or words used by those interested in child pornography to label it so that it could be located and retrieved by others.
8A number of the key words were located on the desktop computer. No evidence was led about the context of where these "hits" occurred, other than that they could have been anywhere on the hard drive. For example, there were 731 hits for "PTHC" (an acronym for "pre-teen hard core") on the desk top hard drive; 681 hits for "Lolita"; and 2,060 hits for Lsbar.
9In addition, there were 1,058 hits on the desktop hard drive for the word "diaper". No evidence was led as to the context in which the word appeared – whether it was related to child pornography, images, videos, or anything else – other than the terse statement by the officer who conducted the forensic examination that "in reviewing the data there were sites related to diaper material". Mrs. Hughes, the defendant's mother, testified that she had conducted searches on the internet for diapers because she buys them for her mother.
10It was agreed that the defendant has a diaper fetish. No evidence was led as to the nature of the fetish or how it is manifested.
11Mr. Hughes lives with his parents, Lucienne Hughes and Patrick Hughes, in Orleans, a suburb of Ottawa.
12The defendant's sister, Nancy Leveille, her husband Michel Leveille, and their 14 year old son Justin lived in an apartment in the basement of the same house in which the defendant lived with his parents. That apartment had a separate entrance.
13The issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Hughes was in possession of the child pornography on any of the three devices.
Part 2: The Law
14"Possession" means that
(a) he had it in his personal possession, knowing what it was and intentionally keeping control over it or,
(b) if it was not in his personal possession, knowing what it was, knowingly putting it in a particular place whether or not it belonged to him, and intending to have it in that place for his use or benefit or that of another person. (R. v. Beaver, [1957] S.C.R. 532; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253)
15In order for the defendant to know what the material was, it was not necessary that he knew that it met the legal definition of child pornography. It would be enough if he knew what it consisted of or depicted so long as that met the legal definition of child pornography set out in s. 163.1(1) of the Criminal Code.
16The Crown's case is entirely based on circumstantial evidence. It asserts that the facts it has proven lead inexorably to the conclusion that Mr. Hughes placed the child pornography on one or more of the 3 devices, whether by downloading it from the internet or some other means, or knew that it was stored on one of the devices and aware of its contents. There is no direct evidence of this.
17In determining whether the Crown has proven its case, I must pay rigorous attention to the principle that the defendant is presumed innocent. A finding of guilt cannot be made unless the Crown proves beyond a reasonable doubt each and every element of the offences. I must be alert to the risk that I may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inferences that the Crown asks me to draw.
18I may draw inferences of guilt from the circumstantial evidence only if those inferences are the only reasonable inferences that the evidence permits. In determining whether inferences consistent with innocence arise from the evidence, I am not limited to inferences drawn from proven facts. Reasonable doubt can arise from the evidence or from a lack of evidence.
19Reasonable doubt does not arise, however, from speculation or conjecture. The Crown is not required to prove its case to an absolute certainty and the burden on the Crown does not extend to "negativing every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". While gaps in the evidence may result in inferences other than guilt, an acquittal requires that those inferences be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. (R. v. Villaroman, 2016 SCC 33 at paras. 26, 30, 35, 36, and 37)
20As the Supreme Court of Canada held at paragraph 38 of Villaroman:
The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
21The defendant was convicted in 2009 of one count of possession of child pornography and one count of distribution of child pornography. I heard evidence about these convictions on three separate occasions. Crown counsel applied to have the conviction and the facts underlying it admitted as similar fact evidence. Defence counsel applied to have evidence ruled inadmissible under s. 24(2) of the Charter of Rights on the basis of alleged breaches of s. 8. The Crown led evidence of the prior convictions on that application, which proceeded with the trial as a blended voir dire. I denied both applications in oral reasons given on August 23, 2017. Defence counsel also referred to the prior convictions while cross-examining the investigating officer, Detective Cassellman, during which she admitted that once she learned of the prior convictions and child pornography was found on the laptop in the defendant's possession she stopped investigating any other persons.
22It would be wrong for me to rely on the fact of the prior conviction, or the facts underlying it, when determining whether the Crown has proven beyond a reasonable doubt that Mr. Hughes is guilty of this charge. I may not and will not infer from the conviction or those facts that Mr. Hughes has a propensity for the behaviour with which he is charged. Nor may I infer that the past convictions or those facts make it more likely that he committed this offence.
23Furthermore, the Crown did not ask me for a ruling allowing me to consider evidence in respect of Mr. Hughes' possession of pornography on one of the three devices when I decide whether it has proven that he was in possession of pornography on one of the other devices. Consequently, I may not do so.
Part 3: The Evidence
24The Crown's case is dependent on me being satisfied beyond a reasonable doubt that Mr. Hughes was the only person who could have placed the child pornography on each computer. For the desktop computer, it submits that its case is bolstered by the admitted fact that Mr. Hughes has a diaper fetish and there were at least two images with diapers on that device, and the word "diaper" appeared somewhere in its files 1,058 times.
25I will review the evidence dealing with access to each of the three devices.
(a) Desktop Computer
26There was no evidence as to how or when the child pornography on the desktop computer was transferred to it. There was no evidence about how or when the child pornography on the desktop computer had been accessed or dealt with.
(i) Evidence of Lucienne Hughes
27Lucienne Hughes, the defendant's mother, testified that the desktop computer was hers. It was in a bedroom which was used as a home office.
28She said that the only time that the defendant used it was when he applied for admission to Algonquin College in October 2014. She helped him apply online, using the desktop computer. She testified that she was "right beside him" while he used it.
29She testified that the desktop computer was password protected and the defendant did not know the password. She used the password she uses in her work in the public service and she said that the defendant still does not know that password.
30She also testified that after the defendant was released from jail following his conviction in 2009, she was told by a police officer that she had to lock the computer. She was also told that when she and her husband were not home they had to disconnect the modem – or, as she called it, the "internet box" – and put it in a safe. She testified that she had done that ever since then, and were still doing it.
31No evidence was led about whether the internet connection was through a Wi-Fi or a hardwired modem.
32Ms. Hughes testified that she gave the password to:
(a) her brother, Robert Proulx, so that he could perform some maintenance on the computer;
(b) her nephew, Steve DeCarlo, who visited her from Montreal in October 2014, and did some maintenance on the computer; and
(c) her son-in-law, Michel Leveille.
33She testified that her daughter Nancy Leveille and grandson Justin had used the computer beginning in September 2014 because they did not have one of their own "so they were coming upstairs to use it". She logged them in to the computer. She said that Justin had had to use the computer to do some projects. Their access stopped at Christmas of that year because they bought their own computer.
34Ms. Hughes was not asked how many accounts were on the desktop computer, or whether she was aware that it contained a "guest" account or an account named "Michel".
35Ms. Hughes also testified that she never downloaded child pornography and did not know that there was child pornography on any of the three devices. She said that she had never seen her husband use any of the three computers and that he does not know how to do so – agreeing with Crown counsel's suggestion that he was "computer illiterate".
(ii) Evidence of Detective Hak Tang
36Detective Tang is an officer in the Ottawa Police Service and has been working in the computer forensic unit since 2014. He examined the three computer devices and extracted the child pornography images and videos, using software programs designed for that purpose and key words which were commonly used by those involved in child pornography.
37He found that the desktop computer had 3 accounts – that is, when a user turned on the computer, he or she could access data on the computer or the internet in 3 ways. One account was called "user", one called "Michel", and one called "guest". The "user" and "Michel" accounts were password protected. The "guest" account was not.
38All of the child pornography on the desktop computer - 1,171 images and 193 videos – were on the "guest" account. Thus the desktop computer could have been used to access and save the child pornography without a password being used.
39Detective Tang was not asked what other material was on the guest account, or on the account labelled "Michel". He was not asked whether the guest account showed evidence of internet browsing. Although he testified that there were a large number of "hits" for words used by child pornography collectors on the desktop hard drive, including 1,058 hits for the word "diaper", he was not asked whether those hits were on the portion of the hard drive accessed from the guest account or one of the other two accounts.
(iii) Evidence of Robert Proulx
40Mr. Proulx, Ms. Hughes' brother, is 53 years of age. He works for the City of Ottawa as a finance officer. He has become adept at working with computers through that work and his previous employment with the financial office of the City of Gloucester before amalgamation in 2000. He testified that he helped his sister with any issues that arose with the desktop computer. He did not help her set it up; he said she bought it new from Future Shop and "they set it up".
41He testified that when he worked on the desktop computer, he always had his sister log in under her credentials. He was not aware of a "guest" account on the computer. He said he did troubleshoot the desktop on a regular basis. He used it once for his own purpose, around 2012 or perhaps earlier, when he wanted to bid on an item on eBay.
42Mr. Proulx testified that he had never uploaded or downloaded child pornography. He said that he had never come across any child pornography on the desktop when he was using it.
(b) iPad
43There was no evidence about how or when the child pornography on the iPad was transferred to it. There was no evidence about how or when the child pornography on the iPad had been accessed or dealt with.
44There was no evidence about whether the iPad could only access the internet over a Wi-Fi or hardwire hookup, or whether the internet could be accessed via the cell phone network.
(i) Evidence of Lucienne Hughes
45Ms. Hughes testified that both she and the defendant used the iPad. She was not always with him when he was using it. When she was not in the house, however, the iPad was locked in the safe with the modem. Her son did not know the combination.
46She testified that she used the iPad when she went on vacation, to read her emails, check her bank accounts, and play games.
47She was shown a photograph of a sticky note on the back of an iPad. She said that the writing on the sticky note was hers, and it recorded passwords used to access a game on the internet for both her and the defendant. She testified that there was no sticky note on the iPad which set out the password for the laptop computer – nor any such note anywhere.
(ii) Evidence of Det. Hak Tang
48Detective Tang testified that the iPad was password protected. The password was not written on a note on the iPad.
(iii) Evidence of Robert Proulx
49Mr. Proulx testified that the iPad was his sister's, the defendant's mother. He did not set it up; she had that done at the store where she bought it. He would occasionally help her with technical issues, generally associated with keeping the device running smoothly by removing "clutter".
(c) Laptop Computer
50There was no evidence about how or when the child pornography on the laptop was transferred to it. There was no evidence about how or when the child pornography on the laptop had been accessed or dealt with.
(i) Evidence of Lucienne Hughes
51Ms. Hughes testified that she bought the laptop for her son as a Christmas present in 2014. She asked her brother, Mr. Proulx, to set it up, which he did before it was given to the defendant.
52She said that she never used the laptop, and as far as she knew, nobody other than the defendant used it.
53She did not know the password. She said that she did not know that there was a sticky note with the laptop's password on the iPad.
(ii) Evidence of Detective Hak Tang
54Detective Tang testified that when he examined the laptop after it had been seized from the defendant, it was locked and required a password to gain access to it. He said that he found a sticky note on the back of the iPad which contained the password to the laptop and he used that password to gain access.
(iii) Evidence of Robert Proulx
55Mr. Proulx testified that he had set up the laptop after his sister purchased it for the defendant at Christmas 2014. He accessed it twice on other occasions when he was at the defendant's home, to deal with technical issues. On both occasions others, including his sister, brother-in-law, and the defendant, were present.
56He testified that the laptop was password protected when he left it alone at his home while he was setting it up. He created the password and committed it to memory. When he returned the laptop to his sister so she could give it to the defendant for Christmas, he removed the password. It did not require a password to access it at that time.
Part 4: Analysis
57As I have indicated, I must determine whether the only reasonable inference from the evidence that I accept is that the defendant was the one who put the child pornography on the 3 devices, or that he knew that it was there and aware of its contents. There is no evidence that it was obvious and in plain view on any of the devices. Consequently, as the Crown submitted, I must find that he put the child pornography on at least 1 of the 3 devices.
58The Crown submitted that only the defendant had access to all 3 devices, and that supported the defendant's guilt. In my view, as I have said, even if I conclude that the defendant is guilty of possession of child pornography on one device, I cannot take that into account when determining whether he is guilty of possession of child pornography on one of the other devices. The Crown has not made a similar fact application.
59In any event, however, the Crown's case relies on the defendant being the only person with exclusive access to at least one of the devices, or if anyone other than the defendant had access that there could be no reasonable inference that they downloaded the child pornography. If each of the devices could be accessed by someone other than the defendant, and there is a reasonable inference that that person or persons could have downloaded the child pornography, I cannot find that the Crown has proven its case beyond a reasonable doubt.
(a) Desktop Computer
60The Crown's case with respect to the desktop rests on Ms. Hughes' evidence. Yet if her evidence is reliable, the defendant cannot be guilty. She testified that the defendant used the desktop only once, in her presence, and he could not have accessed the internet when she was not there because the modem was locked away and inaccessible to the defendant when she or her husband were not home.
61I accept her evidence that she did not download the child pornography herself. But for the defendant to be guilty, she has to be wrong about the defendant's access to the internet and use of the desktop on other occasions.
62Furthermore, Det. Tang's evidence (which I accept) that there were three accounts on the desktop, and all of the child pornography was on the guest account which did not require a password, is contradictory to Ms. Hughes' evidence that a password was required to access the computer. I conclude that she did not know that the computer could be used without the password.
63While I accept Ms. Hughes' evidence that she did not download the child pornography on the desktop computer, I conclude that her evidence is unreliable about who else had access to it or. Clearly someone had access, and loaded child pornography on it, either by the internet or some other means, such as using a USB key.
64Ms. Hughes testified, and I accept, that at one time or another in the 6 or 7 months preceding the seizure of the computer each of her daughter, her son-in-law Michel Leveille, her grandson, her brother Robert Proulx, her nephew from Montreal who visited once, and the defendant had access to the desktop computer.
65Furthermore, one of the accounts on the desktop computer had the name "Michel", raising a reasonable inference that it was used by Michel Leveille. I heard no evidence about what was on the computer under that account.
66I accept Robert Proulx's evidence that he did not download the child pornography. His evidence was given in a straightforward manner and he was not shaken on cross-examination.
67I did not hear from Ms. Hughes' husband, daughter, son-in-law, grandson, or nephew.
68And I heard no evidence about when the child pornography was put on the desktop computer. It could have been put on all at one time or on multiple occasions.
69It was agreed that the defendant has a diaper fetish, and Det. Tang's evidence was that the word "diaper" appeared 1,058 times on the desktop's hard drive. He did not give any evidence as to the context in which it appeared. Nor did I hear any evidence about whether any of the other persons who had access to the desktop computer had a diaper fetish.
70I conclude that there is a reasonable inference that someone other than the defendant was responsible for putting the child pornography on the desktop computer. My conclusion may well have been different if each of Ms. Hughes' husband, daughter, son-in-law, grandson and nephew had testified and denied responsibility, I had accepted their evidence, and was not left with a reasonable doubt as to its veracity. But in the absence of such evidence, I am left with a reasonable doubt as to whether the defendant had downloaded the child pornography on the desktop or was in control of it.
(b) iPad
71The Crown's case with respect to the child pornography on the iPad rests entirely on Ms. Hughes' evidence that only she and the defendant used the iPad, and that it was locked in the safe with the modem when she and her husband were out of the house.
72As I have indicated, Ms. Hughes' evidence is unreliable with respect to who used the computers in the house. If I cannot safely rely on her evidence with respect to whether the modem was locked in the safe or who had access to the desktop computer and when, it would be unsafe for me to rely on her evidence that the iPad was always locked in the safe when she and her husband were out of the home.
73Nor would it be safe for me to rely on her evidence that she and her son were the only persons who used the iPad. This is important because there is evidence that other persons, who used computers, were in the home from time to time. And I did not hear from them.
74I note that while the evidence was that the iPad was password protected, I heard no evidence from anyone, including Ms. Hughes, about who knew the password.
75It is a reasonable inference that someone other than the defendant was responsible for putting the child pornography on the iPad. I am left with a reasonable doubt as to whether that child pornography was in the possession of the defendant.
(c) Laptop Computer
76Ms. Hughes' evidence was that the laptop computer was the defendant's. She gave it to him for Christmas some 3 months before it was seized from him when he was on campus. She testified that she never used it and that, as far as she knew, nobody other than the defendant used it.
77I accept Ms. Hughes' evidence that she did not put the child pornography on the laptop. I accept Mr. Proulx's evidence that he did not do so either.
78But the password to the laptop was on the iPad. I accept Detective Tang's evidence on this point.
79As I have already explained, Ms. Hughes is unreliable with respect to her evidence about who had access to computer devices generally, what was done with them, and where they were stored. Indeed, the Crown's case at least with respect to the child pornography on the desktop rests on the unreliability of that portion of her evidence, because the effect of her evidence, if correct, was that the defendant could not have put the child pornography on the desktop computer. I am thus left with no reliable evidence about who used the laptop computer.
80It is a reasonable inference that someone other than the defendant accessed the laptop, using the password which was freely available to anyone who had the iPad in his or her hands. The reasonableness of this inference is enhanced by the placement of the password on the iPad. If the defendant had wanted to limit the use of the laptop to himself, one would expect that he would record the password someplace more private than the back of the iPad which may have been lying around the house – or, on Ms. Hughes' evidence, locked in the safe when she and her husband were not home. And, as I have indicated, the evidence from Ms. Hughes was that there were other persons in the house from time to time who used computers. Those persons did not testify.
81This inference may not have been reasonable if I had heard evidence, which I accepted, about when, how, and how often the child pornography was put on the laptop computer and how and when it was accessed after being saved. But I heard no such evidence.
82Throughout these reasons, I have noted what evidence I did not hear. The investigating officer, Detective Cassellman, testified that she did not investigate any other potential suspect once she learned that the laptop computer had child pornography on it. This, combined with her knowledge of Mr. Hughes' prior conviction for possession of child pornography, was enough to convince her that he was guilty. Perhaps if she had been more diligent in her investigation she may have been able to compile the evidence which would have prevented the reasonable inferences that others may have been responsible for the child pornography being loaded on the computers. We will never know.
83As a result, I am left with a reasonable doubt about whether the defendant knew the child pornography was on the laptop computer.
(d) Conclusion
84The charge of possession of child pornography is dismissed.
Released: September 28, 2017
Signed: Justice P.K. Doody