W A R N I N G

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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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.

R. v. Snetsinger, 2008 ONCA 298

DATE: 20080421

DOCKET: C47175

COURT OF APPEAL FOR ONTARIO

JURIANSZ, MACFARLAND and WATT JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MATTHEW SNETSINGER

Appellant

Stephen F. Gehl for the appellant

Colleen Hepburn for the respondent

Heard & released orally: April 15, 2008

On appeal from the conviction imposed by Justice R. Haines of the Superior Court of Justice dated June 9, 2006.

ENDORSEMENT

[1] The appellant appeals his convictions for one count of making child pornography and one count of possession of child pornography.

[2] The charges arise out of sexual activity that the appellant engaged in at a motel with two girls aged fourteen and fifteen. One of the complainants testified that the appellant had a camera with him and had taken pictures of the sexual activity. The other testified that she had not seen a camera and had no recollection of pictures being taken.

[3] The police searched the motel soon after and found no evidence of a camera. They searched the appellant’s home three weeks later and seized a computer from his bedroom containing 442 images of child pornography. None of those images were of the complainants. There were over two thousand computer files of sexual material involving adults. A video and a few images were of the appellant’s sexual activity with other adult females.

[4] We do not agree that the trial judge failed to give adequate reasons. His reasons cannot be described as conclusory. The basis for his decision is reasonably intelligible.

[5] The appellant points out that in his reasons regarding the making of child pornography count, the trial judge did not expressly state that the appellant’s testimony denying that he took pictures failed to raise a reasonable doubt. However, the trial judge did explain why he accepted the evidence of the one complainant who testified that pictures were taken. That evidence was extensive and detailed. She saw images on the camera and had tried to delete them. The trial judge referred to the evidence of the other complainant, who did not see or remember a camera, and pointed out she was more traumatized by the events. The trial judge also considered the reservations he had expressed about the complainants’ testimony regarding the assault charges. At the end of the day, he believed the complainant who saw a camera and images. On the basis of her testimony, he was satisfied beyond a reasonable doubt that the pictures were taken. This finding was open to him on the evidence.

[6] On the possession charge, the trial judge disbelieved the appellant’s testimony that he was unaware of the presence of child pornography on the computer and found that his evidence did not raise a reasonable doubt. The appellant was the owner and primary user of the computer, which was in his bedroom. The appellant acknowledged that thousands of other images on the computer were his. On all of the evidence, the trial judge was entitled to draw the inference that the appellant possessed the images.

[7] The appeal is dismissed.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”