Her Majesty the Queen v. Chalk [Indexed as: R. v. Chalk]
88 O.R. (3d) 448
Court of Appeal for Ontario,
Doherty, Blair JJ.A. and Then R.S.J. (ad hoc)
November 28, 2007
Criminal law -- Child pornography -- Possession -- Control -- Accused being aware that videos of child pornography were on his computer's hard drive for several months -- No evidence who downloaded pornography as others had access to the computer -- Accused ultimately instructing his girlfriend to delete his files following his arrest on another charge as afraid that police would discover videos -- Accused exercising sufficient control over videos when he instructed girlfriend to delete them to put him in possession of videos -- Accused being properly convicted of possession of child pornography -- Appeal from conviction dismissed.
The accused was charged with possessing child pornography. Pornographic videos were on the hard drive of a computer kept in the home occupied by the accused, his girlfriend and her two children. When the accused was arrested on an unrelated matter, he correctly anticipated that the police would examine the contents of his computer. He telephoned his girlfriend and told her to delete his files before the authorities had an opportunity to look at them. As she was curious why the accused wanted her to delete his files, she opened them and found a number of pornographic images involving children in the files and showed them to the police. The accused admitted that he knew the videos had been on the computer for several months. The trial judge did not find that the accused downloaded the child pornography or that he accessed it for the purpose of watching the videos, but found that the accused exercised sufficient control over the videos when he instructed his girlfriend to delete them to put him in possession of the videos within the meaning of possession as set out in s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46. The accused was convicted. He appealed.
Held, the appeal should be dismissed.
Criminal possession requires knowledge of the criminal character of the item in issue, and a measure of control over that item. Control refers to power or authority over the item, whether exercised or not. There are cases where an individual has the requisite knowledge and control, but cannot be said to be in possession for the purpose of importing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying it or otherwise placing it permanently beyond the person's ability to exercise any control over it. In such cases, the intention is solely to divest oneself of control rather than to possess. This was not such a case. The accused did not have possession of the child pornography strictly for the purpose of destroying it. He knew that the pornography was on the computer's hard drive for several months. During that time, he regularly used the computer and had control over the pornography in the sense that he could have deleted it at any time. He ultimately decided to do so because he feared the police would discover it. His instruction to delete the material was a manifestation of his longstanding power or authority over the material. He had "possession" of the child pornography.
APPEAL from a conviction entered by Ross J. of the Superior Court of Justice, dated October 21, 2004, and the sentence imposed on December 20, 2004, for possessing child pornography.
Cases referred to R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, 118 C.C.C. 129; R. v. Christie, 1978 2535 (NB CA), [1978] N.B.J. No. 68, 21 N.B.R. (2d) 261, 41 C.C.C. (2d) 282 (S.C. (App. Div.)); [page449] R. v. Daniels, 2004 NLCA 73, [2004] N.J. No. 406, 242 Nfld. & P.E.I.R. 290, 719 A.P.R. 290, 191 C.C.C. (3d) 393, 2004 N.L.C.A. 73 (C.A.); R. v. Glushek, 1978 ALTASCAD 175, [1978] A.J. No. 643, 6 Alta. L.R. (2d) 351, 9 A.R. 539, 41 C.C.C. (2d) 380 (S.C. (App. Div.)); R. v. Loukas, [2006] O.J. No. 2405, 2006 ONCJ 219; R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279, 115 C.R.R. (2d) 229, 182 C.C.C. (3d) 97, 20 C.R. (6th) 178 (C.A.); R. v. York, 2005 BCCA 74, [2005] B.C.J. No. 250, 193 C.C.C. (3d) 331 (C.A.); Rex v. Hess (No. 1), 1948 349 (BC CA), [1948] B.C.J. No. 65, [1949] 1 W.W.R. 577, 94 C.C.C. 48 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 4(3) [as am.], 163.1 [as am.], (4) [as am.]
Jeanine E. LeRoy, for appellant. John McInnes, for respondent.
The judgment of the court was delivered by
DOHERTY J.A.: --
I
Overview
[1] The appellant was convicted by a judge sitting without a jury on a charge of possessing child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. The pornography consisted of several videos found on the hard drive of a computer kept in the home occupied by the appellant, his girlfriend and her two children.
[2] The defence acknowledged that several videos found on the computer fell within the definition of child pornography set out in s. 163.1 of the Criminal Code. The appellant also admitted in a statement to the police that he had been aware for several months that at least some of these videos were on the hard drive. He did not testify.
[3] In my view, the trial turned on whether the Crown had proved that the appellant had a sufficient measure of control over the videos to put him in possession of those videos within the meaning of possession as set out in s. 4(3) of the Criminal Code. The trial judge held that the Crown had met its burden. Counsel on appeal argues that the trial judge's conclusion is unreasonable and that this court should enter an acquittal.
[4] I would dismiss the appeal. The trial judge found that the appellant exercised sufficient control over the videos when he instructed his girlfriend to delete those videos, which he knew had been on the computer he used for several months, so that they would not be discovered by the authorities who were about [page450] to access his computer. That finding was open on the evidence and provided a factual basis for the legal conclusion that the appellant was in possession of those videos within the meaning of s. 4(3) of the Criminal Code.
II
The Facts
[5] The appellant lived with his girlfriend, Shirley Lewis, her 14-year-old daughter and her son who was in grade seven. Ms. Lewis purchased a new computer in April 2002. The computer was kept in the living room and all four occupants used the computer. The appellant, Ms. Lewis and her daughter had personal files on the computer and downloaded material from the internet into those files.
[6] On July 23, 2002, the appellant was arrested on an unrelated matter involving an allegation made by Ms. Lewis' daughter. That night while in custody, the appellant spoke to Ms. Lewis over the telephone. She told him that the Children's Aid Society would be investigating the family because of the charges. The appellant urged her to delete his files from the computer before the authorities had an opportunity to look at them.
[7] Ms. Lewis was curious as to why the appellant wanted his files deleted. She looked into the appellant's folder on the hard drive and found a number of pornographic images involving children. The next day, she showed these images to a police officer who attended at the home in connection with the charges involving Ms. Lewis's daughter.
[8] The police seized the computer on August 7th and ultimately found 16 videos on the hard drive that contained child pornography. The videos were found in a program called "Morpheus" and in a sub directory called "Movies". There were 256 movies in the directory. In addition to the child pornography, there were videos containing adult pornography. Morpheus is a peer-to-peer sharing service, which allows anyone in the Morpheus network to download material from other computers in the network once that material has been made available to users in the network.
[9] Ms. Lewis testified that she was aware that the appellant downloaded adult pornography on to the computer and that she sometimes watched it with him. She did not know that there was child pornography on the computer until she looked into the appellant's file after he told her to delete it. Ms. Lewis never saw the appellant download child pornography and never saw the appellant looking at child pornography on their computer.
[10] Ms. Lewis' son testified that he rarely used the computer. He recalled walking by the appellant when he was downloading [page451] videos from Morpheus. He saw pictures of naked people on the computer screen, but he could not tell their ages.
[11] Ms. Lewis' daughter testified that she saw the appellant downloading pictures of naked people. She also recalled seeing the appellant late at night watching pornography on the computer.
[12] The appellant gave a videotaped statement to the police when he was arrested on this charge. That statement was admitted into evidence. In the statement, he told the police that he was aware, apparently from the titles of some of the videos, that there was child pornography on the computer. He knew this for four or five months before he was arrested. The appellant insisted that he did not know how the child pornography got on the hard drive and that he had never intentionally downloaded child pornography on to the computer. He told the police that he had no interest in child pornography. The appellant acknowledged downloading and watching adult pornography sometimes alone and sometimes with Ms. Lewis.
[13] In his statement, the appellant indicated that he did not attempt to delete the child pornography when he became aware that it was on the computer. At one point in the interview, he said that he did not think it was "his place" to delete those videos. In another part of the interview, he said that "they should've been deleted" and that he had no reason for not doing so. He admitted that he told Ms. Lewis to delete the material after his arrest because he knew "the computer would be investigated" by the authorities.
[14] Forensic examination of the computer revealed that the videos containing the child pornography had been downloaded on to the hard drive of the computer between May 9, 2002 and July 1, 2002. Those videos had been accessed on various dates between May 9 and August 7 when the police seized the computer. There was no way of knowing who had accessed the videos. Five of the videos were accessed by individuals other than the police in early August 2002. The appellant did not have access to the computer at that time.
III
The Trial Judge's Findings
[15] The trial judge found that while there was some uncertainty as to the name of the file or files the appellant asked Ms. Lewis to delete from the computer, there was no doubt, based on the appellant's own statement that he had asked Ms. Lewis to delete files which he knew contained child pornography and that she had accessed those files and found some of the child pornography.
[16] The trial judge did not find that the appellant downloaded the child pornography on to the hard drive, or that he accessed the [page452] child pornography for the purpose of watching the videos. The basis upon which he convicted the appellant is set out in the following passage:
... [T]he accused knew what was on the videos and knew the videos were on the computer. He exercised or attempted to exercise control over them by having them deleted. His purpose, in my view, was not to delete them or to have them deleted simply because he did not want pornography on the computer, but rather, he did not want the authorities to find them.
IV
Analysis
[17] Section 4(3) of the Criminal Code contains a definition of possession. Section 4(3)(a)(ii) contains the relevant part of that definition for present purposes:
(a) a person has anything in possession when he . . . knowingly
(ii) has it in any place . . . for the use or benefit of himself or for another person;
[18] Possession requires knowledge of the criminal character of the item in issue. In this case, the Crown had to prove that the appellant had knowledge of the contents of the videos in issue. It was, of course, irrelevant whether the appellant knew the contents constituted child pornography: see R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, 118 C.C.C. 129, at p. 140 C.C.C.; Rex v. Hess (No. 1), 1948 349 (BC CA), [1948] B.C.J. No. 65, 94 C.C.C. 48 (C.A.), at pp. 51-52 C.C.C. The appellant's knowledge of the nature of the videos was established by his statements to the police.
[19] Knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 2004 9378 (ON CA), 69 O.R. (3d) 481, [2004] O.J. No. 279, 182 C.C.C. (3d) 97 (C.A.), at paras. 60-61.
[20] In R. v. Daniels, 2004 NLCA 73, [2004] N.J. No. 406, 191 C.C.C. (3d) 393 (C.A.), at para. 12, a case which also involved a charge of possession of child pornography in the form of material located on a computer hard drive, Welch J.A. explained the concept of control in these terms:
To be in possession of child pornography, it is not necessary for the individual to have viewed the material. For example, a person may obtain pornographic material in an envelope, but without viewing it, either place it in a drawer or dispose of it in the garbage. It is the element of control, including deciding what will be done with the material, that is essential to possession.
(Emphasis added) [page453]
[21] In her submissions, Ms. LeRoy argued first that the evidence did not support a finding that the appellant knew that the files contained child pornography. This submission cannot succeed in the face of the appellant's own admission in his statement to the police.
[22] Ms. LeRoy also submitted that the appellant's direction to Ms. Lewis to delete the files containing the child pornography could not constitute an act of control for the purposes of fixing the appellant with possession of the pornography. She submitted that the appellant's instructions demonstrated an intention to destroy rather than possess the material. She analogized the appellant's position to that of a person who possesses drugs strictly for the purpose of destroying them by flushing them down the toilet. Ms. LeRoy stressed that the trial judge did not find that the appellant played any role in downloading the pornography on to the computer or that he used the computer to view the pornography. She contended that the finding of control was based solely on the instruction to delete and that this instruction was inconsistent with an intention to possess.
[23] There is a line of authority supporting the proposition that exercising control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one's control does not constitute criminal possession: see R. v. Glushek, 1978 ALTASCAD 175, [1978] A.J. No. 643, 41 C.C.C. (2d) 380 (S.C. (A.D.)); R. v. Christie, 1978 2535 (NB CA), [1978] N.B.J. No. 68, 41 C.C.C. (2d) 282 (S.C. (A.D.)); R. v. York, 2005 BCCA 74, [2005] B.C.J. No. 250, 193 C.C.C. (3d) 331 (C.A.). In Christie, supra, Chief Justice Hughes, in referring to what I would call "innocent possession", said at p. 287 C.C.C.:
In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think that a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession. . . .
[24] The "innocent possession" line of authorities was helpfully examined by Green J. in R. v. Loukas, [2006] O.J. No. 2405, 2006 ONCJ 219. Green J. points out that some of the "innocent possession" cases recognize a public duty defence as for example where an accused takes possession of contraband to deliver it to the authorities. In other cases, "innocent possession" is said to arise from the absence of an intention to exercise control beyond that [page454] needed to destroy the contraband or otherwise put it permanently beyond one's control. Green J. observes that in all of these cases there is, despite the existence of possession in the strict sense, an absence of a blameworthy state of mind or blameworthy conduct. Convictions for criminal possession by a technical application of the concepts of knowledge and control in these circumstances would overreach the purpose underlying the criminal prohibition against possession.
[25] I agree with the analysis described above. There are cases where an individual has the requisite control and knowledge, but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person's ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather than to possess. Like the other appellate courts whose discussions are referred to above, I do not think that criminal liability should attach to that kind of brief, "innocent" possession: see e.g., R. v. Glushek, supra; R. v. York, supra.
[26] I am also satisfied, however, that this line of authority has no application to the findings of the trial judge. His findings negate any suggestion of "innocent possession". On the trial judge's findings, the appellant did not have possession of the child pornography strictly for the purposes of destroying that pornography. He knew that the pornography was on the computer's hard drive for several months. During that time, he regularly used the computer and had control over the pornography in the sense that he could have deleted it from the computer at any time had he chosen to do so. On his own admission, he ultimately decided to delete the pornography because he feared that the police would discover it when they examined his computer. In those circumstances, the appellant's instruction to delete the material was a manifestation of his longstanding power or authority over the material. That control had existed for several months and was not merely incidental to an innocent purpose.
[27] I would dismiss the appeal.
Appeal dismissed. [page455]