Court of Appeal for Ontario

CITATION: R. v. Duncan, 2013 ONCA 774

DATE: 20131219

DOCKET: C55452

Doherty, MacPherson and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Duncan

Appellant

Counsel:

P. Andras Schreck and Candice Suter, for the appellant

Suhail Akhtar, for the respondent

Heard and released orally: December 12, 2013

On appeal from the conviction entered on February 29, 2012 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant William Duncan appeals his conviction by Tausendfreund J. of the Superior Court of Justice, sitting with a jury, for possession of child pornography and making child pornography available. The appellant abandoned his sentence appeal.

[2] The appellant appeals on three grounds: (1) the trial judge did not instruct the jury properly on wilful blindness; (2) the trial judge erred by permitting the jury to view a 20 second portion of a video showing child pornography after the appellant admitted that there was child pornography on his home computer; and (3) the trial judge misstated in his jury charge an important aspect of the testimony of an expert witness.

[3] We did not call on the Crown to address the second issue.

[4] In our view, the appeal must be resolved in favour of the appellant on the first ground. As the trial unfolded, the Crown’s principal position was not that the appellant had actual knowledge of the child pornography on his home computer, but that he was wilfully blind about the child pornography that his house guest had placed and used on the computer. The house guest was a young man who the appellant permitted to live with him, and with whom he later developed a sexual relationship.

[5] The Crown concedes that the trial judge’s original charge on wilful blindness was too broad in that he told the jury that wilful blindness applied if the appellant “knew that the child pornography could be accessed through Limewire or had a suspicion that it could be.” [Emphasis added.] The Crown acknowledges that the doctrine of wilful blindness has application only if the appellant suspected that child pornography was being accessed.

[6] However, the Crown contends that the trial judge’s re-charge cured the problem.

[7] The trial judge re-charged the jury as follows:

…[W]hen I refer to count number one in the indictment, and this is possession of child pornography, and what I had indicated to you that if you find William Duncan – for you to find William Duncan guilty on count one, you must be satisfied beyond a reasonable doubt that William Duncan either accessed child pornography on his computer or was wilfully blind to the fact that it was being accessed. That still stands…. Beyond accessing, what possession includes is that not only accessing, but that William Duncan knew that child pornography was on the computer that day and was either – either knew it or was wilfully blind to the fact that it was on. So, let me re-charge you then with respect to count one. For you to find William Duncan guilty on count one, possession of child pornography, you must be satisfied beyond a reasonable doubt that William Duncan either accessed child pornography on his computer or knew that there was child pornography on his computer or was wilfully blind to the fact that child pornography was being accessed on his computer or was wilfully blind to the fact that child pornography was on his computer and wilfully blind in the sense that he either knew that child pornography could be accessed through Limewire or had a suspicion that it could be, or that he was wilfully blind to the fact that child pornography was on his computer or had a suspicion that it was on his computer but had made a conscious decision not to determine, if his suspicion was, in fact, an actuality. And if so, if you are satisfied beyond a reasonable doubt of that, you must find him guilty. [Emphasis added.]

[8] We agree with the appellant that there are two problems with this re-charge.

[9] First, the re-charge did not correct the original error in the charge; indeed, in the emphasized language above, the trial judge repeated and therefore reinforced the error. The problem with the original charge, as the Crown now concedes, is that the trial judge’s definition of wilful blindness was too broad. Similarly, however, in the re-charge the language, emphasized above, of “could be” and “had a suspicion that it could be” – does not say anything about the level of suspicion to engage the doctrine of wilful blindness: see, for example, R. v. Briscoe, 2010 SCC 13, at paras. 21 and 23, and R. v. Malfara, 2006 17318 (ON CA), 211 O.A.C. 200, at paras. 4-5.

[10] Second, and with respect, the summary of wilful blindness set out above, starting with the words “For you to find” is very confusing. We do not think that this short passage, packed with five or more possible routes to conviction, including some involving wilful blindness and others not involving it, would have been comprehensible to a jury.

[11] The appeal is allowed, the convictions are quashed, and a new trial is ordered.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”