CITATION: R. v. Wilson, 2007 ONCA 213

DATE: 20070327

DOCKET: C44387

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES WILSON (Appellant (Applicant)

BEFORE:

ROSENBERG, GOUDGE and MACPHERSON JJ.A.

COUNSEL:

Joseph Di Luca and Bernadette Saad

for the appellant

Amy Alyea

for the respondent

HEARD & ENDORSED:

March 13, 2007

On appeal from conviction by Justice A. Cooper of the Ontario Court of Justice dated September 8, 2005 and sentence imposed October 4, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] This conviction for child pornography cannot stand for the following reasons.

(1) The trial judge’s reasons with respect to inferred knowledge appear to rest, in part, on improper propensity reasoning because of the appellant’s sexual orientation.

(2) The trial judge erred in drawing an inference of consciousness of guilt respecting child pornography in respect of the advice to the witness Pacian when there was nothing to link that advice to the child pornography charge as opposed to the sexual assault allegations.

(3) The trial judge also erred in drawing an inference of consciousness of guilt from the fact that the P4 computer was not where the appellant said it was when there was no evidence that it was not at that location.

[2] Accordingly, the appeal is allowed and the conviction set aside. We are, however, satisfied that there is some evidence from which an inference of knowledge during some point in the period covered by the information could be drawn.

[3] Accordingly, we order a new trial rather than enter an acquittal.