WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGarvie, 2014 ONCA 394

DATE: 20140514

DOCKET: C50114

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stuart James McGarvie

Applicant (Appellant)

Kristin Bailey, for the applicant (appellant)

Michael Perlin, for the respondent

Heard and orally released: April 29, 2014

On appeal from the conviction entered on January 9, 2009 by Justice D.J. Halikowski of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his conviction of possession and distribution of child pornography on the basis that the trial judge misapprehended the evidence.

[2] He points to para. 91 of the trial judge’s reasons, where the trial judge wrote that “The evidence of Kimberly McGarvie puts the Accused at home [on October 3, 2005] perhaps with his son present in the residence.” The appellant argues that in finding that he was at home on October 3, 2005, when child pornography was displayed on the home computer, the trial judge made a mistake as to the substance of the evidence as to his whereabouts on October 3, 2005, and that this mistake played an essential part in the trial judge’s reasoning process resulting in his conviction.

[3] We are not persuaded that the trial judge was mistaken as to the evidence.

[4] There was ample evidence supporting the trial judge’s conclusion that the appellant was home on Monday, October 3, 2005. This included the evidence of Kimberly McGarvie, the appellant’s wife, that the appellant, who had suffered a series of accidents in pursuing his hobby of Motocross racing, including breaking his back on September 4, 2005, “was off work, recuperating from an accident, for most of 2005 but had returned to his transport business in 2006.” It also included the appellant’s own evidence. He testified that after he broke his back he was unable to even get out of bed for “at least three, maybe four weeks”. Further, he testified that if he was not working during the work week, he would be home during the day. And, in an October 18, 2005 e-mail, the appellant indicated that his back was “a lot better”, he was not yet riding, and was “[g]ettin [sic] lots of stuff done around the house so it’s alright”.

[5] In any event, if the trial judge made an error as to the substance of the evidence as to the appellant’s whereabouts on October 3, 2005, it was not essential to his conviction. It was merely part of the narrative on opportunity. The evidence established that illegal content was also displayed on other days, when only the appellant could have been on the computer. Each time, the illegal content was displayed in the midst of a particular recognizable pattern of behaviour revealed through internet histories. The internet history of October 3, 2005 revealed the same distinctive pattern of behaviour – searching the internet for matters related to the sports of Motocross and Motocross racing, interspersed with accessing child pornography sites, downloading, observing and storing the material on his hard drive. The pattern pointed to the appellant.

[6] We are not satisfied that a miscarriage of justice has occurred within the meaning of s. 686(1)(a)(iii) of the Criminal Code. This appeal is accordingly dismissed.

“Alexandra Hoy A.C.J.O.”

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”