R. v. Branco, 2019 ONSC 1026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RUI BRANCO
Mario Thomaidis, for the Crown
Edmond Brown, for Mr. Branco
HEARD: December 5, 6, 7, 10, 11, 12, 13, 17, 18, 19, 20, 2018, at Brampton
REASONS FOR JUDGMENT
Overview
1Mr. Branco is charged with making available, possessing and accessing child pornography, contrary to ss. 163.1(3), (4) and (4.1) of the Criminal Code, R.S.C. 1985, c. C-46.
2These charges resulted from an investigation by the Peel Regional Police Internet Child Exploitation (ICE) Unit. In early October 2010, using a variety of investigative tools available to law enforcement, police officers with the ICE Unit discovered that an Internet user located in Brampton, Ontario, was downloading child pornography over a peer‑to‑peer file-sharing network.
3Shortly after that, the police succeeded in downloading two image files containing child pornography over that same network from the same Internet user. Police then determined the residential address connected to the Internet protocol address from which the user was accessing the Internet.1
4The police eventually obtained a warrant to search the residence – a house in Brampton that Mr. Branco shares with his elderly parents and two brothers. During the execution of the search warrant, police located and seized a computer from Mr. Branco’s bedroom. A preliminary examination of the computer revealed child pornography.
5Later that day, Mr. Branco was arrested by police. At the time of his arrest, police advised Mr. Branco of his right to retain and instruct counsel. He responded by asking to speak with duty counsel. The primary and secondary common law cautions were next read to him. After being taken to the police division, Mr. Branco spoke with duty counsel.
6The lead investigator subsequently interviewed Mr. Branco for slightly more than one hour. The interview was audio and video recorded. During the interview, Mr. Branco initially denied knowing anything about the presence of child pornography on his computer. He referenced his computer being “hacked” during the preceding two weeks. However, his claims of innocence were short‑lived.
7The officer conducting the interview challenged Mr. Branco’s denial. He told Mr. Branco that computers “leave footprints” on their hard drive and that these showed child pornography was not only downloaded but also viewed on his computer for much longer than two weeks. The officer told Mr. Branco that he knew that he was responsible and just wanted to understand why he was looking at child pornography. To this, Mr. Branco responded with an emotional confession.
8Although Mr. Branco denied any sexual interest in children, he admitted to downloading and viewing child pornography. He explained his actions as being motivated by curiosity. When pressed, Mr. Branco estimated that he likely had 30 images of child pornography on his computer. The evidence at trial revealed that Mr. Branco underestimated the size of his child pornography collection.
9The police eventually carried out a comprehensive forensic analysis of Mr. Branco’s computer. It disclosed the presence of 302 unique child pornography images stored on the computer’s hard drive. Not all of these images were accessible. Someone using the computer could readily view 54 of the pictures. The other files were found in “unallocated” portions of the hard drive, suggesting that they had been deleted but not yet overwritten. Amongst the accessible files were the two image files containing child pornography that the police managed to successfully download from the “shared” folder on Mr. Branco’s computer through the peer-to-peer file-sharing network. Four videos containing what the police considered to be child pornography, each of which was accessible, were also found on the computer.
10The defence initially contested that the images and video recordings constituted child pornography. As a result, as part of its case, the Crown proffered into evidence samples of the still images and all four of the video recordings located on Mr. Branco’s computer. These materials mostly involve prepubescent or pubescent girls. The pictures portray the children in a sexualized manner, with the predominant focus being on the chest, vaginal or anal regions, or some combination of these, of the children in the photographs. The children are mostly nude, with any clothing serving as little more than props in the sexualization of the subjects. All four of the video recordings and some of the still images depict children involved in explicit sexual activity. Therefore, the various pictures and recordings undoubtedly constitute “child pornography,” as defined by s. 163.1(1)(a) of the Criminal Code.
11Given the overwhelming evidence to support the charges of possessing and accessing child pornography, during final submissions defence counsel sensibly acknowledged that the Crown had discharged its burden of proving these two offences beyond a reasonable doubt. However, the parties disagree regarding the adequacy of the evidence relating to the charge of making child pornography available, contrary to s. 163.1(3).
12The Crown argues that the entirety of the circumstantial evidence establishes beyond a reasonable doubt that Mr. Branco not only possessed and accessed child pornography on his computer, but that he also knowingly made it available to other users over the peer-to-peer file-sharing network.
13In contrast, although defence counsel concedes the actus reus of that offence, he argues that the evidence supports a finding that Mr. Branco did not appreciate that he was making child pornography available. Alternatively, counsel argues that there is at least reasonable doubt in that regard. In short, the defence contests the mens rea for the offence.
14Therefore, whether or not the Crown has proven the mens rea for the offence of making child pornography available is the only live issue remaining in this prosecution. As a result, these reasons will proceed in two parts. First, the mens rea required for the offence of making child pornography available, contrary to s. 161.1(3) of the Criminal Code, will be considered. The second part will analyze the evidence at trial relevant to that essential element.
Making Child Pornography Available (s. 163.1(3)) – Mens Rea
15The elements of the offence created by s. 163.1(3) of the Criminal Code have remained unchanged since October 7, 2010. On that date, police successfully downloaded two image files containing child pornography from Mr. Branco’s computer over the peer-to-peer file-sharing network.
16Since then, Parliament has twice amended s. 163.1(3): see the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 17(2); and Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(1). These amendments increased the minimum and maximum punishments and converted what was originally a Crown election offence into a straight indictable offence. They did not, however, alter the essential elements of the offence.
17Section 163.1(3), in part, makes anyone who “transmits, makes available, distributes, sells, advertises, imports, [or] exports … child pornography” guilty of an offence (emphasis added).
18Although the provision expressly defines the actus reus for this offence, it is silent regarding the mens rea required. Nevertheless, established principles of statutory interpretation involving criminal offences presume both the need for mens rea and that it be subjective in nature: see Watts and Gaunt v. The Queen, 1953 CanLII 40 (SCC), [1953] 1 S.C.R. 505, at p. 511; The Queen v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1309-10; R v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 23; and R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 54.
19Given these well-established principles, the Supreme Court of Canada interpreted the offence of making child pornography available as requiring subjective mens rea. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, the Court held that an “accused in a prosecution under s. 163.1(3) of the Criminal Code must be proved to have had knowledge that the pornographic material was being made available.” Spencer, at para. 83.
20This does not mean, the Supreme Court explained, that “the accused must knowingly, by some positive act, facilitate the availability of the material” actually shared: Spencer, at para. 83; see also R. v. Capancioni, 2018 ONCA 173, 405 C.R.R. (2d) 1, at paras. 44, 49. Rather, in explaining the required mens rea, the Supreme Court, at para. 83, adopted the following passage from the decision of Caldwell J.A. in the court below (R. v. Spencer, 2011 SKCA 144, 377 Sask. R. 280, at para. 87):
In the context of a file sharing program, the mens rea element of making available child pornography under s. 163.1(3) requires proof of the intent to make computer files containing child pornography available to others using that program or actual knowledge that the file sharing program makes files available to others.
21Beyond intent or knowledge, in Spencer the Supreme Court of Canada also recognized that wilful blindness can satisfy the mens rea required for the offence of making child pornography available contrary to s. 163.1(3): see Spencer, at paras. 84-86; Capancioni, at paras. 44, 49.
22Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea: see R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. It refers to the mindset of an accused who knows there is a need for further inquiry about the existence of the prohibited outcome (the actus reus) but who fails to inquire because he does not wish to know the truth. Culpability based on wilful blindness stems from the deliberate choice not to inquire despite appreciating the need for further inquiry: see Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584; and Briscoe, at paras. 21-24.
23Wilful blindness is different from criminal negligence; it entails more than a failure to inquire that constitutes a marked departure from the conduct expected of a reasonable person in the circumstances: Briscoe, at para. 24. Instead, wilful blindness involves an accused choosing to “shut his eyes” because he knows, or strongly suspects, that looking will “fix him with knowledge”: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, at paras. 102-103. Given this, wilful blindness is said to be akin to “deliberate ignorance”: Briscoe, at para. 24, citing D. Stuart, Canadian Criminal Law: A Treatise, 5th ed. (Scarborough: Thomson Carswell, 2007), at p. 241.
24To be wilfully blind, in respect of the offence of making child pornography available under s. 163.1(3) through the use of a file-sharing program, an accused must know, or at least suspect, that by using the program he is making child pornography available to other Internet users. Recognizing that possibility, the wilfully-blind accused chooses to refrain from making inquiries in order to insulate himself from the truth about the program’s file‑sharing capabilities: see Spencer, at paras. 84-85; and Capancioni, at para. 49.
25In summary, a finding of guilt for making child pornography available contrary to s. 163.1(3) requires the Crown to prove, beyond a reasonable doubt, that Mr. Branco subjectively appreciated that he was making child pornography available to others. The Crown can satisfy this requirement by establishing that Mr. Branco either intended to share child pornography, knew he was sharing child pornography or was wilfully blind to the fact that he was sharing child pornography. Each provides an alternative basis for establishing the subjective mens rea required for this offence. With the governing principles set out, I now turn to review the relevant evidence before analyzing whether or not the Crown has discharged its burden.
Relevant Evidence and Analysis of the Mens Rea Element
26The charge against Mr. Branco of making available child pornography results from the police downloading two files from his computer on October 7, 2010, using a file-sharing program over a peer-to-peer file-sharing network. Proof of the mens rea for that offence very much depends on Mr. Branco’s understanding of how such systems function. An extensive amount of expert evidence presented at trial addressed the nature and operation of this technology.
27Today, there are many peer-to-peer file-sharing networks in operation. These networks are often generically referred to by the acronym “P2P.” These systems use the infrastructure of the Internet to connect individual users, people and their home computers, so that they can share files located on their respective computers with one another. These are decentralized file-sharing systems. There are no centralized servers or hubs for the storing of data. Rather, the computers of at least some of the individual users connected to the network provide the repository for the files that are available for downloading by other participants on the network.
28Two of the most common peer-to-peer file-sharing networks in operation today are Gnutella and ED2K. To access a file-sharing network, a computer user must download and install a “client” (a software program) that will enable the user to participate in the particular file-sharing network. There are many different file-sharing programs that a computer user can choose to download. These programs have a variety of names, and different clients are compatible with different file-sharing networks.
29By way of example, if a computer user wanted to participate in the Gnutella file‑sharing network, they could do so by downloading and installing either the LimeWire or Frostwire file-sharing programs. In contrast, a computer user who wanted to participate in the ED2K file-sharing network would need to download and install the eMule file-sharing program. Finally, a computer user could download Shareaza, which is a file-sharing program capable of interfacing with both the Gnutella and ED2K file-sharing networks.
30Given that peer-to-peer file-sharing networks do not have centralized servers, their viability very much depends on the computers of the individual users acting as servers for the network. Simply put, these systems could not function without individual users making the files located on their computers available for downloading by other users.
31As a result, file-sharing programs are designed to prompt users, during the installation process, to agree to share files on their computer with other users. In other words, without the active step by the user of clicking to affirm their agreement to share files from their computer, files on that user’s computer will not be made available for downloading by other users on the file-sharing network.
32During the installation of a file-sharing program, if the user agrees to participate in file-sharing, a location on the user’s computer hard drive will be designated as the “shared” folder, so that files in that location are then available for downloading by other users on that same network. A user can always go back and alter these settings. For example, a user can designate any location on the hard drive of their computer for sharing, including, if they choose, the entire hard drive. Alternatively, the user can also alter the settings so that none of the files on the hard drive of their computer are available for downloading by other users.
33If a computer user who has downloaded a file-sharing program chooses to close off their hard drive from file sharing, that user would still be able to download files from other users on the network; but none of the files on their computer would be available for downloading by other users on the network.
34If a file-sharing program is installed and the user has not opted out of file sharing, then anytime that user’s computer is turned on and also connected to the Internet, the files in the user’s shared folder will be available for downloading by other computer users connected to the file-sharing network. If these preconditions are satisfied, the file-sharing program will operate seamlessly in the background. The user whose shared folder is being accessed by another user to download a file will not be aware that this is happening. File‑sharing programs do not notify the computer user who has installed the program every time a file is downloaded from their shared folder by someone else on the network.
35It deserves mention that there is nothing inherently nefarious about file-sharing networks and programs. These systems essentially provide a means of communication, a technological tool by which individual computer users can share all sorts of computer files. Unfortunately, given the ease with which computer files can be shared using file‑sharing networks and programs, like other aspects of the Internet, these resources are sometimes used for criminal purposes, including by those who possess, access and trade in child pornography.
36In this case, on October 7, 2010, the police managed to download two image files containing child pornography from Mr. Branco’s computer over a file-sharing network. The police eventually seized Mr. Branco’s computer on October 26, 2010. During their forensic analysis, the police discovered the file-sharing program known as eMule installed on Mr. Branco’s computer. They also found traces of a second file-sharing program known as Ares.
37As noted, following his arrest, Mr. Branco was interviewed by the lead investigator. After some preliminary questioning about his computer, the officer specifically asked Mr. Branco about file sharing. The relevant exchange was as follows:
Officer: Okay. Um, do you use it for file sharing at all?
Branco: No.
Officer: So you’ve never had, you’re saying, you’re saying…
Branco: No. No.
Officer: You’re saying there’s no file-sharing program on there?
Branco: Uh-huh.
Officer: There’s no eMule?
Branco: Well, that’s, that’s what I was talking about. That’s where I download music.
Officer: Yeah, that’s, sorry, that’s file sharing.
Branco: Oh.
Officer: You’re downloading music. Like you’re using, like you go …
Branco: Oh, I don’t, I don’t, I don’t share it with anybody.
Officer: No, I know, but you download, you, other people share it with you, right? Like when you download music you’re grabbing it from someone else, right?
Branco: Yeah.
Officer: If you give it to me you’re sharing it with me, right? Sharing is, it’s, it’s two ways. It goes two ways, right? We share with each other, right? Hence the term “file sharing.”
Branco: I didn’t know that.
Officer: You follow? Well, if you’re getting the music from, from someone, right? I mean, the music, you’re not grabbing it out of thin air. You’d have to get it from someone else, right? So they have to share it with you.
Branco: Now I get you.
Officer: Right? Do you follow?
Branco: Yeah.
Officer: When, uh, is the eMule the only one you’ve ever used?
Branco: Yeah.
Officer: Okay, when did you start using eMule?
Branco: Like, uh, almost two years ago.
Officer: Two years ago. So do you remember kinda, can you narrow down like roughly when?
Branco: Um, who put me onto that? Actually, the guy at the computer store put me onto that.
Officer: Mm-hmm.
Branco: Narrowing it down? Probably before Christmas in 2000, no, it can’t be 2007. 2008.
Officer: 2008?
Branco: Yeah.
Officer: Before Christmas?
Branco: (Nods head in affirmative.)
Officer: Okay. Um, so yeah, just before Christmas. And then what kinda files would you share?
Branco: Hmm, shit, there’s that share word. I didn’t really [know] he was sharing fricking files with me.
Officer: Well, you have a shared folder, no?
Branco: No, I think I put, I didn’t put a shared folder on there.
Officer: Well, you, file-sharing clients like eMule or LimeWire, stuff like that, they only work if you have a shared folder. I guess you have, when it downloads, it downloads into your shared folder. Right? When it downloads into your computer it has to go, it has to go someplace, right, the computer has to organize it. It has to take the song or that picture and it has to put it somewhere on your computer, right, so that your computer can find it when you wanna access it, right?
Branco: Oh. I guess so.
Officer: Did you, did you install the eMule yourself?
Branco: Yeah.
Officer: Okay. Usually, I haven’t done eMule, but I’ve done things like LimeWire. Usually, when you install it, it explains to you, okay, you know, this is your shared folder and things like that. Do you remember that?
Branco: Usually, when I do it I just frigging click, click, click, click. I don’t even frigging read.
38This excerpted exchange took place during the period of the interview when Mr. Branco was still steadfastly maintaining that he was not responsible for the child pornography police found on his computer. It preceded his eventual admission to downloading and viewing child pornography. In other words, at least at times during his interview, it is clear that Mr. Branco lied about being responsible for the child pornography found on his computer.
39This raises the somewhat obvious question as to whether or not Mr. Branco’s professed ignorance about the operation of file-sharing programs was truthful or merely part of his initial effort to conceal his culpability. After Mr. Branco’s emotional admission to downloading and viewing child pornography, the interviewing officer did not return to the topic of file sharing.
40The Court of Appeal for Ontario has made clear that the analytical framework recognized by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, applies whenever credibility issues arise between the case for the Crown and evidence for the defence. Beyond the accused’s testimony at trial, the same analysis applies to an accused’s out of court statements, for example, a police interview tendered into evidence as part of the Crown’s case. See R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 60; R. v. D.B., 2011 ONCA 51, 273 O.A.C. 241, at paras. 113-14. The W.(D.) framework is of assistance in assessing whether or not the Crown has proven the charge of making child pornography available beyond a reasonable doubt in light of some of the exculpatory claims Mr. Branco made during his police interview. I now turn to that analysis.
41To begin, if I believe Mr. Branco’s claims from his police interview that he did not appreciate that he was sharing files on his computer with others, then he is entitled to be found not guilty of the charge of making child pornography available.
42Alternatively, even if I do not believe him, I must still go on to consider whether, when considered along with all of the other evidence, his comments during the police interview suggesting that he had no idea that he was sharing files leave me with a reasonable doubt regarding the mens rea for the offence of making child pornography available.
43Finally, even if I entirely reject Mr. Branco claims that he was oblivious to the fact that he was sharing files and also conclude that his comments do not leave me with reasonable doubt, the analysis is not complete. I must still go on to consider whether, based on the remaining evidence that I do accept, the Crown has proven the mens rea of the offence charged beyond a reasonable doubt.
44In the end, given that he lied about other matters during his police interview, I am unable to say that I believe Mr. Branco’s claims that he did not appreciate that he was sharing files. That said, when I consider what Mr. Branco told police, along with all of the other evidence in this case, I have a reasonable doubt regarding the mens rea of the offence. I will briefly explain why I am far from sure that Mr. Branco intended, knew, or was wilfully blind to the fact that he was sharing child pornography.
45First, it is apparent from the evidence that Mr. Branco is not the most technologically-savvy computer user. At the time, he was using a computer that was twelve years old. The computer was running a version of the Windows operating system that was, by 2010, at least a couple of iterations out of date. Further, many of his responses during the police interview suggest that he lacked anything more than a rudimentary knowledge of computers. He appeared to struggle when answering basic questions regarding his computer, and he seemed less than familiar with terminology that a reasonably capable computer user would understand.
46Second, although Mr. Branco obviously downloaded and used file-sharing programs, there is nothing inherent in the names of these programs that would readily signal to a less-than-sophisticated computer user what their use entails. Names like LimeWire, Frostwire, eMule, Shareaza and Ares do not self-identify for the ordinary computer user as “file-sharing” programs.
47Third, although the evidence established that upon installation, file-sharing programs prompt a computer user to agree to share files on their computer with other users on the network, the evidence on this critical issue was no more detailed than that. There was no evidence regarding the precise content or form of the information presented to a user during the installation of either eMule or Ares during the period from 2008 to 2010, which were the file-sharing programs that Mr. Branco appears to have been using during that timeframe.
48In short, without such evidence, the court is left with many questions regarding some key factual issues. For example, to what extent did these programs make plain that by clicking to signify one’s agreement, the person installing the software was enabling other users on the network to download files located on their computer? Was this explained in simple and easily-understood language or technical jargon that a less‑than‑sophisticated computer user might not understand? Further, how was this information presented to the computer user installing the program – for instance, was it in large or small print? Was this information provided on its own, or was it found in the midst of other text – for example, copyright warnings or terms of use containing legalese?
49In my view, the answers to these questions are essential to deciding if Mr. Branco subjectively appreciated that he was sharing child pornography with other Internet users through his use of programs like eMule and Ares.
50Finally, I have carefully considered Mr. Branco’s comment, during his police interview, that when installing eMule: “I just frigging click, click, click, click. I don’t even frigging read.” It would undoubtedly constitute wilful blindness if Mr. Branco suspected the software would make child pornography located on his computer available to other Internet users but clicked his way through the installation process (without reading) to insulate himself from the truth about how the program functions.
51However, based on all of the evidence in this case, as well as a lack of evidence regarding some critical questions, I am not sure that, either at the time of installing the file‑sharing programs or at any time afterwards, Mr. Branco suspected that by using this software he would be making child pornography located on his computer available to other Internet users.
52As a result, the Crown has failed to prove beyond a reasonable doubt the mens rea for the offence of making child pornography available contrary to s. 163.1(3) of the Criminal Code.
Conclusion
53Mr. Branco is found guilty of both possessing child pornography (count 1) and accessing child pornography (count 3). However, he is found not guilty of the charge of making child pornography available (count 2).
Justice James Stribopoulos
Released: March 1, 2019
CITATION: R. v. Branco, 2019 ONSC 1026
COURT FILE NO.: CR-12-2163
DATE: 2019-03-01
ONTARIO SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN – and – RUI BRANCO
BEFORE: STRIBOPOULOS J.
COUNSEL: Mario Thomaidis, for the Crown
Edmond Brown, for Mr. Branco
REASONS FOR JUDGMENT
STRIBOPOULOS J.
DATE: March 1, 2019
1 Police sent a request to the service provider, who in turn furnished the name and address of the customer associated with the Internet protocol address. This very likely violated Mr. Branco’s s. 8 Charter right to be secure against unreasonable search or seizure. See R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212. In response to questioning by the court, defence counsel advised that he decided against bringing a Charter application because he concluded that the exclusion of evidence under s. 24(2) was unlikely, given that the investigation predated the Supreme Court’s decision in Spencer.
