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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Graham, 2015 ONCA 113

DATE: 20150218

DOCKET: C50624

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Graham

Appellant

Dale Graham, acting in person

Delmar Doucette, appearing as amicus curiae

Alison Wheeler, for the respondent

Heard: January 21, 2015

On appeal from the conviction entered on September 26, 2008, by Justice T. David Little of the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

OVERVIEW

[1] This is an appeal against conviction only on charges relating to child pornography. The appellant has served the custodial portion of his sentence.

[2] Of the several grounds of appeal advanced, I need only deal with the arguments advanced by the amicus relating to similar fact evidence as I am of the opinion that the other grounds of appeal have no merit. The facts relevant to this aspect of the appeal may be briefly stated. An internet-based investigation revealed that an IP address at the appellant’s residence had been used to share child pornography on June 24 and 26, 2007. This led the police to obtain a warrant to search the appellant’s home on July 6, 2007. The police seized a computer and two camcorder videotapes, one from the appellant’s bedroom (video #1) and one from the appellant’s camera (video #2). The videos contained voyeuristic scenes of the appellant’s friends’ children using the bathroom. The police also found numerous images of child pornography on the appellant’s computer.

[3] The police found a peephole between a room known as the “tattoo room”, in which the appellant did tattoos for paying clients, and the adjacent bathroom. The peephole was camouflaged by a calendar in the tattoo room and a false mirror in the bathroom. In addition, a webcam was found in a corner cabinet in the bathroom. The webcam was connected to the computer owned by the appellant. The appellant was the person who installed the corner cabinet.

[4] Several months later, a box was found in the appellant’s home containing printed child pornography and a third voyeuristic videotape (video #3). Video #3 contained some of the same scenes as video #2. The appellant was charged with 16 counts relating to child pornography and voyeurism.

[5] At trial, the Crown led evidence from a number of witnesses that young children attended at the appellant’s home to play on the trampoline in the back yard. They sometimes came into the house and used the bathroom that could be viewed through the peephole from the “tattoo room” and where the webcam was located. On one occasion the appellant had two children try on clothes in the bathroom. The Crown submitted that this evidence was indicative of “a pattern of the [appellant] placing himself in an opportunistic position.” She continued: “That is evidence that is directly attributable to the [appellant]. There is no one else that this set up, this whole opportunity could be attributed to….”

[6] No voir dire was held in relation to this evidence. No objection was made by counsel at trial to its admissibility. Similarly, although no charges related specifically to the webcam, evidence that it was hidden in the bathroom and connected to the appellant’s computer was admitted at trial without a voir dire or an objection.

DECISION BELOW

[7] The appellant was charged on sixteen counts related to child pornography and voyeurism. The trial judge convicted the appellant on count 1, making child pornography; count 2, voyeurism; count 8, accessing child pornography; and counts 9, 12, and 13, possessing child pornography. Count 2, voyeurism, was stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was acquitted on the remaining counts.

[8] The structure of the trial judge’s reasons is as follows. He began by referencing the counts on which he had entered directed verdicts of acquittal. Then he dealt with the charges relating to voyeurism and acquitted the appellant on counts 3, 4, 5, 15 and 16 on the basis that the Crown had not proved that the conduct occurred prior to the coming into force of the Criminal Code provision which created the voyeurism offence. The trial judge also acquitted the appellant on count 6, which he found to duplicate the conduct alleged in count 9.

[9] The trial judge then turned to the balance of the charges and, under the heading “Observations” in his reasons, stated:

The balance of the charges must all be lumped together and analyzed so as to determine whether or not it was the [appellant] who was involved in processing and/or downloading the child pornography found or turned over to the police. The [appellant] admits that it is child pornography. The defence really rests upon the ground that it has not been proven, beyond a reasonable doubt, that the [appellant] himself was the party involved.

[10] The trial judge then rejected the defence submission that a tenant in the house who occupied the back bedroom was the perpetrator. He accepted the tenant’s evidence that he had nothing whatsoever to do with the appellant’s computer or child pornography. He also accepted the tenant’s evidence that he was unaware of the hidden webcam in the bathroom or the existence of the peephole. The trial judge concluded, “He [the tenant] didn’t even like children around the place and, in fact, queried the [appellant] as to their presence.”

[11] The trial judge went on to deal with count 1, making child pornography, and count 2, voyeurism, both of which pertained to scenes found on video #1. The video showed S.H., the young daughter of the appellant’s friends, on the toilet reading a store flyer having a date after the voyeurism legislation had come into force. The videotaping took place through the peephole. The trial judge found the appellant created the peephole and altered the mirror, thereby permitting the camcorder to view the toilet area of the bathroom. The appellant’s friend, the vendor of the house, testified that he had renovated the bathroom by applying new drywall just before selling the house and that the bathroom contained no holes. The vendor also testified that he continued to live in the house for a period of time after selling it and that it was the appellant who placed the mirror in question on the bathroom wall. The appellant was also the person who built the corner cabinet in the bathroom that supported the hidden webcam connected to the appellant’s computer.

[12] The trial judge then referred to other evidence, some of which did not directly relate to counts 1 and 2. He referred to the connection between the appellant and scenes in video #2, made at an earlier time in an apartment rented by the appellant. Video #2 contained scenes showing the appellant as well as voyeuristic bathroom scenes of another child, H.H. That same child had been encouraged by the appellant to take a shower in that bathroom. The trial judge also referred to the earlier filming of other children and the discovery of video #1 in the appellant’s bedroom together with a cheerleading card picturing S.H. The trial judge found that all of this evidence pointed to the appellant as the perpetrator of the offence.

[13] The trial judge further commented:

The existence of the webcam connected to the [appellant’s] computer and his acknowledgment that he did download child pornography on that computer, although allegedly by mistake, lead to the inevitable conclusion that he was the one making the film with his camera through the peephole from his tattoo room into the bathroom.

He found the appellant guilty on count 1.

[14] As indicated, the trial judge held that count 2 related to the same incident and entered a conditional stay on that count.

[15] On the computer-related charges, the trial judge found the appellant guilty of accessing and possessing child pornography on June 24, 2007, at the time of the internet investigation (counts 8 and 9), and possessing child pornography on July 6, 2007, the day of the physical search (count 12). In so-doing the trial judge relied on the evidence of Det. Howe and D.C. Eddy about the appellant’s Dell 2400 computer, and the appellant’s statement to the police. In that statement, the appellant told the police that he had used Limewire, a program that allows files to be shared over the internet, to download music and had accidentally downloaded child pornography at the same time, because he had not been careful when selecting files. He maintained that he never intentionally saved any of the child pornography files and that he tried to delete them from his computer, but did not delete them all.

[16] The trial judge rejected the appellant’s explanation. Some of the evidence to which the trial judge referred in rejecting this explanation and in convicting him is the following. There was no indication that Limewire had ever been used on the appellant’s computer to download music. With the assistance of a program called “CP4” or “categories for pictures”, the police confirmed that a large number of child pornography files had been downloaded and almost all of the confirmed child pornography files had been viewed during downloading and permitted to continue. Further, D.C. Eddy testified that many of the default settings in Limewire had been changed to allow for greater downloading capacity, likely by someone who was familiar with Limewire. The trial judge concluded that it was the appellant who accessed the child pornography and that he intended to access it. Thus, he was guilty on count 8. He possessed the pornography on his computer on the date of the internet search (June 24, 2007) and the date the search warrant was executed (July 6, 2007) and was guilty of possessing pornography on his computer on the two dates relating to counts 9 and 12.

[17] The trial judge also found the appellant guilty on count 13, possessing child pornography pictures. Following the appellant’s arrest, one of the vendors of the appellant’s house was permitted by the mortgagee bank to remove belongings she had left behind after selling the house to the appellant. She picked up a box in the kitchen to use for moving purposes and in cleaning it out found a videotape, #3, and some 40 pages of pornographic pictures. Video #3 had images of S.H. as a younger girl in a bathroom and excerpts of the same voyeuristic bathroom scenes showing H.H. found on video #2.

ISSUES

[18] Amicus makes three arguments on the use of similar fact evidence at trial. Amicus submits the trial judge erred because he:

(1) admitted evidence of disposition without a voir dire or any consideration of the use to which the evidence could be put if it was properly admissible;

(2) used evidence admissible on some counts as disposition evidence on other counts without a voir dire or any consideration of the use to which the evidence could be put if it was properly used on other counts; and

(3) relied on the improperly admitted disposition evidence and on disposition reasoning in deciding to convict.

Amicus submits that in light of these errors, none of the convictions can stand.

ANALYSIS

[19] Amicus submits that the trial judge improperly relied on both extrinsic evidence and count-to-count evidence. The argument regarding the admission of disposition evidence without a voir dire or any consideration of the use to which the evidence could be put if it was properly admissible relates to the extrinsic evidence concerning the neighbourhood children and the webcam. This evidence had no probative value except with respect to disposition. I agree that it would have been better had the trial judge held a voir dire and heard submissions concerning its admissibility. The Crown acknowledges that a formal ruling should have been sought on the use of this evidence. Nonetheless, the Crown submits that the evidence was admissible to show that the appellant had a situation-specific propensity to look at children illicitly. The appellant’s conduct went well beyond normal adult behaviour towards children. The Crown further submits that the trial judge did not use this evidence in convicting the appellant, or if he did, that its use was proper and occasioned no substantial wrong or miscarriage of justice.

[20] The other disposition evidence in issue all related to misconduct on various other counts with which the appellant was charged. It was admissible in relation to these specific counts so no voir dire was necessary. The question is whether it was properly used on the counts for which the appellant was convicted.

[21] In relation to counts 8, 9 and 12, accessing and possessing child pornography, the trial judge based his findings on a number of factors, all of which arose out of evidence directly related to the computer. He did not rely on either the count-to-count or extrinsic evidence or any propensity reasoning in finding the appellant guilty. I reject the submission of the amicus that, simply because the trial judge said at the outset of his analysis that “[t]he balance of the charges must all be lumped together and analyzed”, I should infer that the trial judge used propensity reasoning on all of the counts. While the trial judge may have said this, his reasons demonstrate that this is not in fact what he did. Insofar as identity and the actus reus are concerned, the appellant admitted he had downloaded child pornography. The issue was whether the appellant intended to download child pornography and, having regard to the police evidence in relation to the computer, the trial judge held that he did. The appellant was not prejudiced by the lack of a voir dire or formal ruling on the evidence in relation to these counts. The appeal on counts 8, 9, and 12 is dismissed.

[22] The heart of the appellant’s argument regarding disposition evidence relates to counts 1 and 2. Before analyzing the trial judge’s treatment of these counts, I will briefly summarize the law in this area.

[23] Evidence as to an accused’s general disposition or bad character is presumptively inadmissible. This exclusionary rule seeks to guard against the risk of convicting an accused based not on proof related to the offence charged, but instead because he is a “bad person”. The rule seeks to prevent two kinds of prejudice to the accused: moral prejudice, in particular where the evidence is of previous misconduct that is more reprehensible than the offence charged and thus more likely to lead to a conviction based on an improper inference, and reasoning prejudice, which involves the potential distraction of the jury from its proper focus on the offence charged: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 140, 144.

[24] However, the prohibition against admitting evidence of previous discreditable acts (or “similar fact evidence”) is not absolute. As Binnie J. remarked in Handy, at para. 41, “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. A trial judge may therefore admit similar fact evidence if she is satisfied on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception: Handy, at para. 55.

[25] Where similar fact evidence is introduced to prove identity, there are special considerations. A trial judge must first assess the degree of similarity between the acts in question to determine whether it is likely that the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 48.

[26] In analyzing the trial judge’s treatment of counts 1 and 2, it is important to note that the question of identity was in issue for these offences, as the defence had argued that there was a reasonable doubt raised by the possibility that the tenant was the peephole cameraman. It is not clear whether the trial judge’s comment that the tenant “…didn’t even like children around the place and, in fact, queried the [appellant] as to their presence” was a reflection that contrasted the tenant to the appellant and the extrinsic evidence relating to the neighbourhood children. In any event, the trial judge did not use the evidence simply to find that the appellant was the kind of person likely to have committed the offences charged.

[27] The extrinsic evidence the trial judge relied upon with respect to counts 1 and 2 was properly admissible as similar fact evidence. To the extent that the trial judge relied on the testimony of the neighbourhood children on these counts, it was not contested that the appellant had encouraged neighbourhood children to come over and allowed them to use his bathroom. The extrinsic evidence concerning the hidden webcam and the neighbourhood children, including the evidence that the appellant had encouraged two children to change their clothing in his bathroom, shows that the appellant had a situation-specific propensity to look at children illicitly. There was no evidence that the tenant had this peculiar interest.

[28] The extrinsic evidence also shed light on the nature of the appellant’s relationship with children and was relevant to the context in which the offences charged occurred. The extrinsic evidence respecting the webcam and the neighbourhood children was not more reprehensible than the evidence already before the court and did not appreciably complicate the trial. This was a judge-alone trial and, as a result, neither reasoning prejudice nor moral prejudice was a substantial concern. The risk of reasoning prejudice in particular is considerably reduced in judge alone trials: see R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 57. In my opinion, the probative value of this evidence outweighed its prejudicial effect and it was admissible. As between the appellant and the tenant, the evidence could be used by the trial judge in eliminating the tenant as a suspect.

[29] Some of the count-to-count evidence employed by the trial judge with respect to counts 1 and 2 was admissible, not simply as similar fact evidence, but as circumstantial evidence of identity. The evidence respecting videos #2 and #3, charged in other counts, was also relevant to counts 1 and 2 beyond merely demonstrating propensity. The fact that the appellant was seen setting up the camera in video #2 showed his familiarity with camera equipment. The fact that video #2 was found in the appellant’s video camera suggested that the same-sized videotape, #1, found in the appellant’s bedroom, also belonged to him. Video #2, filmed earlier in time, showed another child, H.H., who had been encouraged by the appellant to take a shower: this video was filmed at the appellant’s previous apartment where he lived alone. In other scenes on the same tape, the appellant could be seen in the video. Video #3 had scenes on it from video #2 and it too was found in the appellant’s house. The circumstantial evidence made it likely that the same person had made all three videos. The unlikelihood of coincidence is overwhelming. The evidence is not simply disposition evidence, but evidence as to identity and evidence about what was going on.

[30] Further, given the evidence of the vendor of the house respecting who had installed the corner cabinet in the bathroom, which the trial judge accepted, the count-to-count similar fact evidence did not bear the whole burden of proof.

[31] To the extent that the trial judge used the count-to-count evidence in propensity reasoning on counts 1 and 2, for instance his reference to the appellant’s admission of downloading child pornography, this was not improper in the circumstances. As discussed above with respect to the extrinsic similar fact evidence, the probative value of the evidence that it was the appellant and not the tenant who had a sexual interest in children, particularly a voyeuristic interest, exceeded its prejudicial effect.

[32] I also do not find the appellant’s arguments of procedural unfairness persuasive. I agree that it would have been preferable for the trial judge to have held a voir dire and heard submissions concerning the admissibility and use of the evidence. Nonetheless, defence counsel did not object to the Crown’s failure to seek a ruling on admissibility of the extrinsic evidence or how the count-to-count evidence could be used. In closing submissions, the Crown specifically relied on propensity reasoning. Defence counsel was thereby alerted and given the opportunity to respond. In any event, the similar fact evidence was admissible and was properly used. The appeal on counts 1 and 2 is dismissed.

[33] With respect to count 13, possessing child pornography, given that the pictures of printed child pornography were discovered in the same box as video #3 in the appellant’s kitchen, it was appropriate for the trial judge to use the evidence relating to video #3 as part of the circumstantial evidence that it was the appellant who possessed the printed pictures. Propensity reasoning was not used in convicting the appellant on this count. The appeal on count 13 is dismissed.

[34] Accordingly, I would dismiss the appeal.

Released: FEB 18, 2015

(“KMW”) “Karen M. Weiler J.A.”

“I agree David Watt J.A.”

“I agree Gloria Epstein J.A.”