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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 20230309 Docket: C67009

Judges: Huscroft, Sossin and George JJ.A.

Between:

His Majesty the King Respondent

and

Henning Jonat Appellant

Counsel:

Carter Martell and Jeff Carolin, for the appellant Caitlin Sharawy, for the respondent

Heard: March 2, 2023

On appeal from the convictions entered by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, on February 5, 2019.

Reasons for Decision

[1] The appellant was convicted of possession of child pornography, making available child pornography (five counts), and making child pornography, following a trial by judge and jury. He appeals against conviction and raises four issues on appeal:

1. The admission of child pornography rendered his trial unfair;
2. His ability to fairly present his defence was undermined;
3. The evidence obtained pursuant to a search warrant should have been excluded based on breaches of the appellant’s s. 10(b) Charter rights; and
4. The strip search of the appellant violated his s. 8 Charter rights.

[2] The appeal is dismissed for the reasons that follow.

The trial was not rendered unfair by the admission of child pornography

[3] It was common ground that someone was using the appellant’s desktop computer for purposes of child pornography using the name “Stinger6ex”. Stinger6ex was running a file sharing program called “Gigatribe” from the appellant’s computer and making images of child pornography available online. Stinger6ex had also conducted chats about child pornography using the Gigatribe platform on one occasion and Yahoo Messenger on 20 others, all of which were saved on the appellant’s computer. The appellant was found to have 662 unique images of child pornography and 37 videos of child pornography on his computers.

[4] The appellant argues that the trial judge erred in admitting 17 “thumbnail” images as well as portions of the chats. According to the appellant, the only live issue on the make child pornography count and the make available counts was identity – whether the appellant was “Stinger6ex” – while the only live issue on the possession count was whether the appellant knew that the files were on his computer, and this was effectively established if it were proven that the appellant was Stinger6ex.

[5] We do not agree.

[6] At the heart of this ground of appeal is the appellant’s position that his admissions rendered it unnecessary to admit any of the images of child pornography, and that only a small portion of the chats had any relevance. However, the trial judge was entitled to find otherwise. Identity and knowledge were live issues during the trial: there was no ruling by the trial judge that Stinger6ex had knowingly posted the child pornography. There were recurring themes in the images, folders, and chats that spoke to the issues of knowledge, which was a live issue on both the possession and make available counts, as well as identity. The thumbnail images – i.e., small images on the folders that were made available by Stinger6ex, rather than the material in the folders – showed how Stinger6ex’s Gigatribe profile was organized and what the folders that were being shared looked like. The images provided evidence of Stinger6ex’s specific sexual interests relating to pre-teen children and offered circumstantial evidence that the appellant was Stinger6ex and knowingly possessed the images. The impugned chat evidence from the Gigatribe and Yahoo platforms provided further evidence as to Stinger6ex’s specific sexual interests, which were generally consistent with the images found on the appellant’s computers.

[7] It is plain from the record that the trial judge was alive to the problem of possible prejudice and limited the amount of child pornography that went into evidence. In the end, he admitted only 17 thumbnail images, not all of which were child pornography, and the images were shown to the jury only briefly at various points during the trial. In addition, the trial judge required that the Yahoo chats be redacted to remove some particularly inflammatory content.

[8] We see no error in this approach. The appellant argues that the images could have been shown for shorter periods of time and described in less detail, and that the Yahoo chats could have been further edited, but the standard is not perfection. The trial judge is entitled to significant deference in balancing the probative value and prejudicial effect of the evidence. There is no basis for this court to interfere.

[9] The appellant also argues that the trial judge’s ruling was procedurally unfair. We do not agree. The appellant parses the record, claiming procedural confusion at various points. We see no such problem. The trial judge dealt with the parties on an ongoing basis in balancing the probative value of the evidence and concerns about its potential prejudicial effect. There is no basis for this court to revisit the trial judge’s findings or procedure.

The appellant’s ability to fairly present his defence was not undermined

[10] The appellant argues that his ability to present his defence to the jury was undermined in three ways: (1) the Crown unfairly relied on inadmissible anecdotal evidence from Det./Sgt. Krawczyk; (2) the Crown improperly cross-examined the defence expert; and (3) the trial judge erred in charging the jury by effectively instructing them to reject the defence’s common sense theory. The first two issues were not pressed in oral argument on appeal and we see no merit in them.

[11] We are satisfied that the trial judge did not err in charging the jury, and in particular, by tying the defence position to the expert report. He was entitled to point out that Mr. Musters, the defence expert, had exceeded the scope of his expertise. However, the trial judge clearly left it to the jury to consider the evidence as a whole. He set out the positions of the parties fully and fairly, including the defence position that it defied common sense that an IT-knowledgeable person such as the appellant would download child pornography from an insecure site by insecure means to an insecure computer, in effect “leaving a [trail] of flashing neon breadcrumbs for the police to follow right to his door”. Nothing more was required.

The appellant’s right to counsel

[12] The appellant argues that he was not informed that he was entitled to consult with counsel immediately, thereby breaching the informational component of his s. 10(b) right. However, the trial judge found that although the appellant was not informed that he had the right to counsel “without delay”, he was informed of the essential character of his s. 10(b) right in accordance with R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721. This finding is entitled to deference.

[13] The trial judge found that the police breached the appellant’s rights by failing to hold off from questioning him after informing him of his right to counsel. The Crown accepts this finding but disagrees with its characterization for purposes of the s. 24(2) analysis. This point will be addressed below.

[14] The trial judge found that the appellant was afforded access to counsel without delay having regard to the circumstances of his detention and subsequent arrest. The appellant argues that there was an unreasonable delay of 90 minutes in implementing his right to counsel. D/C Blackadar told the appellant that he would not be able to consult counsel at the scene of the search warrant execution and would have to wait until after the search. The Crown supports the trial judge’s finding, distinguishing this case from those such as R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, in which there were lengthy delays without justification. In Rover, the police were following a practice that routinely prevented arrested persons from contacting counsel.

[15] The trial judge’s decision is entitled to deference. As in R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 75-78, it was reasonable to conclude that the investigation could have been compromised by attempting to facilitate contact with counsel at the house while the search was underway. It is clear from the record that D/C Blackadar considered whether the appellant could be afforded the necessary privacy to consult counsel at the house in the circumstances but determined that it would not be feasible. Moreover, although the appellant did not waive his right to counsel, he specifically informed the police that he did not require a lawyer for the search. This is not a case like R. v. Noel, 2019 ONCA 860, in which there was a “cavalier” approach taken to the appellant’s counsel rights.

[16] The only breach found by the trial judge concerned the failure of the police to hold off questioning the appellant after informing him of his right to counsel. The trial judge found that the impact of this breach was slight and was adequately addressed by excluding from evidence the appellant’s statements given at the scene, which the Crown did not intend to adduce in any event. We see no basis to interfere with the trial judge’s s. 24(2) analysis. It is entitled to deference.

The strip search was not unconstitutional

[17] The appellant argues that there were no reasonable grounds for strip searching the appellant and that the search was conducted unreasonably because it was not conducted in a private area.

[18] We disagree.

[19] The trial judge found that although the reasons for ordering the strip search were brief, they were articulated and rational. The supervising officer knew that the appellant would be introduced to the general prison population, so it was necessary to ensure he was not armed or had nothing on his person that could be used as a means of escape. This finding is entitled to deference. So too is the trial judge’s finding that the search was conducted reasonably. The appellant argues on appeal that the area in which the search was conducted was not private, but there is no basis to disturb the trial judge’s finding to the contrary.

[20] The appeal is dismissed.

“Grant Huscroft J.A.” “L. Sossin J.A.” “J. George J.A.”