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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230629 DOCKET: C68986

Lauwers, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Wilfred Kwok Appellant

Counsel: Mark Halfyard, for the appellant Emily Bala, for the respondent

Heard: November 22, 2022

On appeal from the convictions entered by Justice Michael K. Wendl of the Ontario Court of Justice on November 18, 2020, with reasons reported at 2020 ONCJ 528.

Zarnett J.A.:

A. Overview

[1] The appellant appeals his convictions for possession of child pornography, accessing child pornography, and making child pornography available, contrary to ss. 163.1(4), (4.1), and (3) of the Criminal Code.

[2] The main issue at trial was whether the appellant had knowledge and control over illicit material that was found on two computers seized by the police in August 2019 from a room in the basement of the appellant’s father’s residence in Guelph, Ontario.

[3] The trial judge noted the absence of surveillance showing that the appellant resided at the house. No one testified that he lived there. The trial judge nonetheless concluded that the circumstantial evidence established, as the only reasonable inference, that the appellant actively engaged in downloading, organizing, and viewing the illicit material on the computers, thus satisfying the essential elements of knowledge and control.

[4] The appellant raises three grounds of appeal. He submits that the trial judge wrongly relied on a police officer’s opinion that articles found in the basement room were climbing equipment to connect the room to the appellant, who worked at a rock climbing gym. In addition, he argues that the verdict is unreasonable because the trial judge ignored available inferences that were inconsistent with guilt, such as the opportunity for others to use the computers. Finally, he asserts that the trial judge misapprehended the evidence by using material that was not in evidence to determine dates on which some files or folders containing illicit material were created or viewed. In the appellant’s submission, these dates formed an essential part of the trial judge’s reasoning process that led him to conclude that these activities occurred when the appellant was using the computers and living in the house.

[5] While I reject the first two grounds of appeal, I accept the misapprehension of evidence ground. A misapprehension of evidence can result in a miscarriage of justice warranting a new trial, even if a conviction was otherwise available on the evidence. This is one of those cases.

[6] Accordingly, I would allow the appeal, set aside the convictions, and order a new trial.

B. The Trial Evidence

[7] The evidence at trial consisted of an agreed statement of facts, a number of exhibits, and the testimony of several police officers. The appellant did not testify or call any witnesses. I summarize below the basic factual narrative, and then circumstances specific to the grounds of appeal. I return in more detail to some of the matters that were and were not in evidence in the “Analysis” section.

[8] In May 2019, Guelph Police identified a computer (with a particular IP address) that had downloaded files linked to a network suspected of sharing child pornography. The police were able to trace the IP address to a subscriber: the appellant’s father at an address in Guelph.

[9] A search warrant was executed on August 16, 2019 at the appellant’s father’s house. The appellant’s father and two other people (whom the police did not identify) were in the house at the time the police attended.

[10] During the search, officers proceeded to a basement room where there were numerous digital devices, including two computers and four hard drives. One computer was password-protected. The computers, which both had a username “wil”, and the hard drives contained a total of 5,652 images and 65 videos of child pornography.

[11] The password-protected computer contained some personal information and documents, with various dates, that related to the appellant. They included:

Guelph police service record check in the name of the appellant dated June 2019;
T4 statements from a climbing club for 2015, 2016 and 2017;
T1 general statements for 2015 and 2016;
Pay stubs between January 29, 2016 and May 20, 2016;
Service Ontario license plate sticker receipt dated January 2018;
An Air Canada flight receipt dated May 2018.

[12] Some of these documents listed the appellant’s address as the address where the search warrant was executed.

[13] The appellant was not at the house when the police attended. There was no surveillance evidence of him being at the house. No one testified that he lived there. The appellant was arrested at his place of work – a rock climbing gym in Milton.

(1) The “Climbing Equipment” Evidence

[14] It was part of the Crown’s theory that the room where the computers were found was the appellant’s bedroom.

[15] The room contained a made bed, a laundry basket, vitamins on the headboard of the bed, and clothes strewn across the floor. One of the two computers was plugged in and left on a chair next to the bed. A photo of a driver’s license was found in the room, but the name was illegible and the picture was unclear.

[16] The investigating officer, Detective Constable Lunn, testified that during the search he saw a diploma with the appellant’s name on it, and climbing equipment in the room. He said:

I went down to the basement to begin my search in the basement … [and] observed there to be a lone bedroom in the basement. Walked into that bedroom. Observed there to be the diploma on the wall, which had the name [of the appellant], from the University of Windsor. It was a Bachelor of Arts. I also observed there to be climbing equipment hanging from the ceiling of the room. It looked like training equipment for grip strength for rock climbing.

[17] The officer later again said that “inside of the room … I observed there to be climbing training aids hanging from the ceiling”. In identifying a photo of the room, he also stated: “And what I see most in the picture here is going to be the training climbing equipment that’s hanging from the ceiling on the right-hand side”.

[18] There was no objection to this evidence.

[19] When D.C. Lunn was cross-examined, he corrected his evidence about the location of the diploma – it was on a shelf, not the wall. He was not questioned about his reference to climbing equipment or challenged on his ability to identify it.

[20] Both the Crown and defence adopted the description of climbing equipment in their closing arguments.

(2) The Digital Forensic Report

[21] D.C. Kaut, a computer forensic officer, testified. He provided a summary of his evidence in a PowerPoint presentation that was made an exhibit.

[22] D.C. Kaut had also prepared a Digital Forensic Report. He described the PowerPoint as a “subset of my forensic report”. The report was given to the trial judge as an “assistive device”. The trial judge made it clear when he received it that the report itself was “not evidence” and permitted D.C. Kaut to refer to the report when he testified “just like an officer’s notes”. Certain personal documents of the appellant that had been found on the computers and were referred or appended to the report were marked as numbered exhibits. However, the report was not made an exhibit.

[23] The trial judge left it open for the Crown to argue, at the end of D.C. Kaut’s evidence, that in addition to his testimony and the exhibits (including the PowerPoint) that were specifically marked, the report itself should be considered evidence. The Crown did not pursue doing so. Nor did the Crown take up the trial judge’s invitation to have the report made a lettered exhibit, which would not have given the report the status of evidence, but would have been the best practice to ensure clarity of the trial record for appeal purposes. [1]

[24] There was no reference to the report in the parties’ closing submissions.

C. DECISION BELOW

[25] The trial judge recognized that, in a case involving circumstantial evidence, there can only be a conviction if the sole possible reasonable inference is one of guilt. The trial judge identified the central question in this case to be whether the only reasonable inference was that the appellant had knowledge and control over the illicit material.

[26] The trial judge agreed with defence submissions that the “investigation was problematic” as there was “no testimony or surveillance” indicating that the appellant resided at the home, but he explained why he still was able to conclude that the appellant downloaded, organized, and viewed the illicit material. Part of that process was to compare the creation dates of files or folders on the computers containing the illicit material to other dates, such as those on personal documents of the appellant that were also on the computers, and to draw conclusions from the overlap.

[27] In establishing this overlap, the trial judge used dates when files or folders containing illicit material were created, and in one case, used a date when an illicit image was viewed, that were not in evidence. Although the trial judge did not specify how he derived them, the parties agree that these dates could only be found in the Digital Forensic Report.

[28] The trial judge’s use of these dates was contained in paras. 23-26 of his 32-paragraph reasons. Those paragraphs are reproduced below with the dates that were not in evidence underlined:

[A]ll the information gleaned from the computer was that [the appellant] resided [at his father’s address]. The airplane ticket receipt confirms that [the appellant]’s address was [his father’s] as late as May 2018. The receipts are of importance in this analysis. They were found on the Computer 1 (password protected), they confirm the accused’s address for the first half of 2018 and have the benefit of added confirmation since both used a VISA ending 3019 belonging to the accused. Between the times of these two receipts (license plate renewal [dated January 2018] and airplane ticket [dated May 2018]), 2 folders containing illicit material were created. The folder ‘data’ was created on January 26, 2018 containing 60 images and 1 video and the ‘sib’ folder on March 18, 2018 which had 236 images. As a result, at least two user created folders containing illegal material were in existence when [the appellant] used Computer 1 and lived at [his father’s address].

In relation to when the ‘data’ and ‘sib’ folders were created in 2018 , the only conclusion I can come to is that [the appellant] had knowledge and control over Computer 1 and its contents. Computer 1 is password protected and that password was created upon creation of the user ‘wil’. There is only one password and one user to Computer 1. Therefore, since we can confirm that [the appellant] used the computer in 2018, that the password was the same then as in 2016 when it was created, that he is the owner of Computer 1 as confirmed by the receipt for the hard drive, that his name is Wilfred and the user name is ‘wil’, and that his personal documentation was on the computer leads to the inexorable conclusion that Computer 1 is [the appellant’s] or that, at the very least, it was his computer when the ‘data’ and ‘sub’ folders were created and he was the only user account.

In addition to that, Computer 1 was used by [the appellant] for a police record check in June 2019. At that time, all 12 user created folders found on Computer 1 with illicit material had been created .

In relation to the material on Computer 2, user created folders containing illegal material were created in April 2014, September 2015, February 2016 and December 2016 . Furthermore, the forensic analysis demonstrates that ‘jailbait’ images were being viewed from September 2014 until May 2017 . Pay stubs for [the appellant] overlap some of those times. The pay stubs date from November 2015 until March 2016. Also, there is the bill of sale for the hard drive dated March 2016 in the name of [the appellant] which allows for the conclusion that [the appellant] was using Computer 2 while offending material was directly on the desktop, immediately accessible to him. [Emphasis added.]

[29] The trial judge combined the reliance he placed on the overlap of dates with evidence that linked the appellant to the bedroom, including the presence of rock climbing equipment. He stated, at paras. 27-28, (the underlined passage pertains to the climbing equipment):

In relation to the defense position, while I do not consider it necessary that the Crown prove [the appellant] resided at [his father’s address], I find the suggestion that [the appellant] no longer resided there to be speculative and unconvincing. The overlapping evidence of [the appellant] having control and possession of Computer 1 and 2 at the time the offending material was downloaded and sorted on the computers is itself compelling evidence of his possession of those devices. Furthermore, the only address contained in [the appellant’s] personal documentation links him to [his father’s address]. To be sure, the evidence is clear and unilateral that [the appellant] lived there at least until May 2018, which we know from the receipts and the tax returns. We also know that [the appellant] is involved in climbing and the bedroom in the basement had climbing equipment in it . The room downstairs also had [the appellant’s] University degree on the wall and a password protected computer which he purchased. In addition to that, the room at the time of the execution of the search warrant had a lived-in quality because of the clothes strewn about, the laundry basket, the plugged-in computer and vitamins on the headboard. Based on all this evidence, I can draw the inference that someone lived in the downstairs room and given the wealth of personal material related to [the appellant], I can conclude that the person is [the appellant].

As a result, I cannot believe that [the appellant] ever left [his father’s address]. [Emphasis added.]

[30] Finally, the trial judge considered the defence argument that others in the home could have also accessed the computers. He noted that while he “would have preferred a better investigation”, there was no evidence of other users of the password-protected computer. Even if there had been, it would not have detracted from the “overwhelming” evidence that the computer belonged to the appellant, and he had possession of it. Based on his prior analysis, he likewise concluded the appellant had knowledge and control over the second computer that was not password-protected. While he acknowledged that it was easier for others to access the second computer, he recognized that exclusive use was not necessary to find that the appellant had the requisite knowledge and control of the illicit material.

D. ISSUES ON APPEAL

[31] As noted above, the appellant raises three issues. I discuss them in the following order.

[32] First, I address, and reject, the argument that the trial judge erred in relying on the officer’s statement that the equipment found in the basement bedroom was “rock climbing equipment”, because it was inadmissible lay opinion evidence. It is necessary to consider this point first, so as to know the constellation of admissible evidence that might be considered on the other grounds of appeal.

[33] Second, I address the submission that the verdict was unreasonable, and that an acquittal was therefore required, before turning to whether a misapprehension of evidence gave rise to a miscarriage of justice requiring a new trial. As this court stated in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 540, “on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court should first consider the reasonableness of the verdict … [i]f the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice”.

[34] Finally, since I reject the argument that the verdict was unreasonable, I turn to the argument that the misapprehension of evidence caused a miscarriage of justice even though a conviction was otherwise available on the evidence.

E. ANALYSIS

(1) The Lay Opinion Ground of Appeal

[35] The appellant submits that the trial judge erred in permitting D.C. Lunn to give an opinion that “climbing equipment” was in the basement room, and in relying on it to support the inference that it was the appellant’s bedroom. The appellant submits that “[t]here was nothing in the evidence to suggest that Det. Lunn had any specific or particular knowledge of rock-climbing equipment, or that he was correct to opine that the rope apparatus in the impugned bedroom was in fact used for rock climbing”.

[36] I do not accept this argument.

[37] There are three possible categories into which the rock climbing equipment statements of D.C. Lunn could be placed: an observed fact, admissible lay opinion evidence, or an opinion on a subject that required special knowledge and that needed to be given by an expert in the field. In R. v. Collins, 150 O.A.C. 220 (C.A.), at para. 17, Charron J.A. (as she then was) explained the differences between the three categories:

In the law of evidence, an opinion means an “ inference from observed fact ” … [A]s a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. A witness testifying that ‘a person was drunk’ is a common example of an opinion that can be provided by a lay witness … Otherwise, opinion evidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, an expert in the field may be permitted to provide the judge and jury with an opinion…. [Emphasis in original; citations omitted.]

[38] The parties agree that it is often difficult to distinguish between an observed fact and an opinion: see Graat v. R., [1982] 2 S.C.R. 819, at p. 835. I would add that in some cases it will be difficult to draw a precise line between opinions that can be given by lay persons and those that require an expert. However, an opinion that is based on information gained by ordinary as opposed to specialized training or experience is not an expert opinion, even if that experience may not be common. So long as the witness has the non-expert experience required to form the opinion, it will be admissible: R. v. Millard, 2023 ONCA 426, at para. 108.

[39] The identification of the climbing equipment at issue does not clearly fall outside the category of an observed fact or that of a permissible inference by a lay person from observed facts. The appellant concedes that a lay person could identify certain types of sporting equipment but argues that this climbing equipment is of a more specialized type, therefore requiring specialized training or expertise for its identification. The problem with the submission is two-fold.

[40] First, an ability to recognize sporting equipment is not the kind of knowledge that typically requires specialized learning from either training or experience. There is no basis for inferring that the recognition of rock climbing equipment requires specialized experience, education, or acumen even though the activity may be less common than other sporting activities. Prior exposure to such equipment would be enough to permit a lay witness to offer this kind of opinion.

[41] Second, not only did the defence not object to D.C. Lunn giving this evidence at trial, no effort was made to question him about where his claimed knowledge came from. Indeed, both counsel at trial adopted his description of climbing equipment in closing submissions. The fact that the defence counsel did not object, or test D.C. Lunn’s observations, and adopted that position in submissions can be taken as an indication of which side of the line the impugned evidence falls; in other words, it supports the conclusion that the evidence “was not impermissible opinion evidence prejudicial to the position of the appellant”: R. v. Ajise, 2018 ONCA 494, 361 C.C.C. (3d) 384, at para. 27, aff’d on other grounds, 2018 SCC 51, [2018] 3 S.C.R. 301.

[42] I would reject this ground of appeal.

(2) The Unreasonable Verdict Ground of Appeal

[43] A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. To determine whether this has occurred, an “appellate court [is entitled] to re-examine and to some extent reweigh and consider the effect of the evidence … in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55 (citations omitted).

[44] In a circumstantial case, the trier of fact is required to consider other plausible theories and reasonable possibilities inconsistent with guilt, provided they are “based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: Villaroman, at para. 37. But the Crown does not need to negative every possible conjecture which “might be consistent with the innocence of the accused”: at para. 37.

[45] When assessing whether the verdict is unreasonable, a court will bear in mind any misapprehension by the trial judge: see e.g., R. v. Ali, 2023 ONCA 411, at para. 21; Morrissey, at p. 540.

[46] The appellant argues that the trial judge’s verdict was unreasonable because it fails to account for reasonable inferences that were inconsistent with the appellant’s guilt. Specifically, the appellant argues that the trial judge failed to properly consider: (a) the inference that other family members could have used the computers; and (b) the inference that the appellant resided at his father’s address part-time, further suggesting others could have used the computers. In his view, both inferences were available on the evidence or lack thereof, and therefore capable of raising a reasonable doubt about the appellant’s knowledge and control of the illicit material.

[47] In my view, even after accounting for the trial judge’s misapprehension of the evidence, a guilty verdict was not unreasonable. It was one that could have been reached on the properly admissible evidence. The trial judge rejected the same alternative inferences proposed by the appellant on appeal, and those conclusions, even if impacted by his misapprehension of the evidence, could still have been reached on evidence that was properly admissible. In other words, the circumstantial evidence that could properly be relied on by the trial judge was capable of supporting the inference that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.

[48] First, the proposed inference that the appellant lived at his father’s address part-time was rejected by the trial judge who concluded that the appellant lived in the downstairs bedroom and never moved from the address. His conclusion was supported by the following evidence: (a) the appellant’s university degree was in the basement bedroom; (b) a search of the two computers found in the bedroom and containing the illicit material revealed multiple personal documents of the appellant’s with dates ranging from 2015 to June 2019; (c) the only address listed in the appellant’s personal documents was his father’s address; (d) the bedroom contained climbing equipment, and the appellant worked at a rock climbing gym; (e) the “sib” folder on the password-protected computer was created in March 2018, which overlapped with the range of dates attached to the appellant’s personal documents; and (f) the bedroom had a lived-in quality because of the strewn clothes, the plugged-in computer, and vitamins on the headboard of the bed. With this evidence, and without the assistance of evidence that was misapprehended, the trial judge was entitled to dismiss the theory that the appellant did not reside at his father’s address as “speculative and unconvincing”.

[49] Second, the trial judge was satisfied that there was no evidence of other users of the password-protected computer. In doing so, the trial judge effectively rejected the proposed inference that other family members used the password-protected computer to download the illicit material without the appellant’s knowledge. It was not an unreasonable call. The trial judge noted that: (a) the computers were located in the appellant’s bedroom; (b) the computers did not contain any personal documents of a person, other than the appellant, with the appellant’s last name; (c) the computers each only had one username titled “wil”; and (d) the password-protected computer was purchased by the appellant and had not had a password change since shortly after the operating system was installed in 2016. Much of this evidence was also relevant in rejecting the theory that others downloaded the illicit material on the second computer without the appellant’s knowledge. In light of his factual findings, and the evidentiary foundation that properly supported them, the trial judge did not have to accept other theoretical possibilities, such as the sharing of passwords between family members, as rising above conjecture.

[50] Given that the appellant did not testify at trial, his argument that there were alternative inferences the trial judge should have, but did not give effect to, is all the more difficult. As this court stated in R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at para. 141, leave to appeal refused, [2022] S.C.C.A. No. 113: “When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt”.

[51] Accordingly, I would reject this ground of appeal. The appellant is not entitled to an acquittal on the basis that no reasonable trier of fact could have found him guilty.

[52] Even so, the question remains whether the appellant is entitled to a new trial because a miscarriage of justice occurred. That is a distinct question because, although the admissible evidence could support a conviction, the trial judge was still required to decide whether he should convict based on only that evidence. He went beyond doing so and relied on matters not in evidence to reach his conclusion. I now turn to that question.

(3) The Misapprehension of Evidence Ground of Appeal

[53] That a trial judge, in the course of convicting an accused, got some of the evidence wrong, does not necessarily equate to a miscarriage of justice.

[54] But a conviction that rests on a material misapprehension of the evidence will be reversed, and a new trial directed, if the misapprehension goes to substance, and is on a matter that is material to the trial judge’s reasoning process. To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; Morrissey, at p. 541.

[55] A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable: Morrissey, at p. 541. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction.

[56] The appellant argues that the trial judge misapprehended the evidence by relying on material – the Digital Forensic Report – as a source of dates when files or folders were downloaded onto the computers and when an image was viewed. The report was not in evidence; consequently, neither were the dates derived solely from it. D.C. Kaut’s testimony and the exhibits introduced when he testified did not contain these dates.

[57] Treating, as facts, “information derived from sources extraneous to the trial” is a type of misapprehension of evidence: Morrissey, at p. 541. As this court clearly stated in Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 86, leave to appeal refused, [2015] S.C.C.A. No. 119: “If an expert's report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire.” The trial judge accepted the report expressly on the basis that it was not evidence, and the Crown did not take up his invitation to apply to have the report treated as evidence. The trial judge erred to the extent he used it to find facts beyond what the actual evidence disclosed.

[58] The trial judge’s use of the dates he derived solely from the report was not peripheral or narrative. It formed part of his reasoning. The only question is whether it was an essential or material part of his reasoning, because of the way it was intermixed with matters that were properly in evidence. In my view, it was.

[59] As noted above, the police found the appellant’s personal documents on the two computers with various dates, and some listed the appellant’s address as his father’s house. These dates were relevant circumstantial evidence for establishing when the appellant resided at the address where the illicit material was found. The trial judge then relied on when certain files and folders that contained illicit material were created to establish a period when the material was downloaded and when the appellant resided at the address. This circumstantial evidence assisted the trial judge in deciding whether the appellant had knowledge and control over the illicit material.

[60] In establishing this overlap, the trial judge first focused on two folders: the “data” folder and the “sib” folder. The trial judge found that the “data” folder on the password-protected computer contained 60 images and one video and was created on January 26, 2018. The creation date of the “data” folder was not in evidence. The trial judge also found that the “sib” folder on the same computer was created on March 18, 2018 containing 236 images. The “sib” folder creation date was in evidence.

[61] The trial judge used the creation date of the “data” folder as part of the following chain of reasoning. The “data” folder was one of two folders created in the first half of 2018, which was the period established by the dates on two of the appellant’s receipts that listed the house as his address. Therefore, the folder was one of two created and that existed with illicit material when the appellant used the computer and resided at the house. Therefore, as the trial judge stated: “[i]n relation to when the ‘data’ and ‘sib’ folders were created in 2018, the only conclusion I can come to is that [the appellant] had knowledge and control over [the password-protected computer] and its contents.”

[62] Then, after referring to some additional matters that were in evidence – the receipt for the computer’s hard drive, the fact that the password was never changed, his personal documentation on the computer, and the username being the first three letters of the appellant’s first name – he returned to the importance of the creation date of the “data” folder. He expressed the “inexorable conclusion that [the password-protected computer] is [the appellant’s] or that, at the very least, it was his computer when the ‘data’ and ‘sib’ folders were created and he was the only user account.”

[63] The trial judge’s reasons speak strongly to whether he considered the “data” folder creation date to be material and essential. He not only referred to it, but he emphasized its significance when expressing conclusions after referring to it: “ at least two user created files”; “the only conclusion I can come to”; “the inexorable conclusion”. The question is not whether the trial judge could have reached the same conclusions relying only on the “sib” folder creation date, and the other matters that were in evidence. The point is that, for him, as the trier of fact, the “data” folder creation date lent significant support to the conclusions he reached.

[64] The conclusion that the trial judge’s reasoning was materially impacted by his use of dates derived solely from the report that was not evidence is fortified by his reliance on dates other than the one attached to the “data” folder. The trial judge found that when the appellant used the password-protected computer for a police record check in June 2019, “all 12 user created folders found on [it] with illicit material had been created.” Other than the “sib” folder, the creation dates of the other folders were not in evidence. To be sure, the folders must have been created before the police seized the computers in August 2019, but it was important to the trial judge’s reasoning that twelve folders, not one, were created before the appellant did the record check in June 2019.

[65] Finally, the trial judge referred to dates – between April 2014 and December 2016 – as the creation dates of folders containing illicit material on the computer that was not password-protected. These dates were not in evidence. He also referred to at least one date when an image was viewed that was not in evidence. After referring to the dates attached to pay stubs that fell within 2015 or 2016 and to a hard drive receipt that were in evidence, he reasoned that the combination “allow[s] for the conclusion that [the appellant] was using Computer 2 while offending material was directly on the desktop, immediately accessible to him.”

[66] In my view, the only conclusion available is that the trial judge’s misapprehension of evidence played an essential and material part of his reasoning. The appellant was entitled to be tried only on the evidence. Even though the evidence may have been capable of supporting a conviction without reference to the dates from the report that was not in evidence, an essential part of his reasoning relied on them. Given the role played by his misapprehension of evidence, the result the trial judge reached was not a “true verdict”.