Court of Appeal for Ontario

CITATION: R. v. Milliken, 2015 ONCA 897

DATE: 20151216

DOCKET: C59736

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Sean Milliken

Appellant

James Harbic and Robert Harbic for the appellant

Gillian Roberts for the respondent

Heard and released orally: December 9, 2015

On appeal from the conviction entered on March 18, 2014 by Justice J.M. Johnston of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] On January 24, 2012, two movies containing child pornography were made available on a peer-to-peer file sharing network and downloaded by police. The movies were made available by the IP address associated with the internet account used by the appellant and his parents at their home in Brockville.

[2] On February 13, 2012, police executed a search warrant and seized the appellant’s laptop from his room. The desktop had 10 icons that linked to child pornography movies. A forensic examination of the computer showed that it contained 101 still images and 115 movies of child pornography.

[3] The appellant was convicted of possessing child pornography relating to the February 13 incident. He was acquitted of three counts related to possession, accessing, and sharing child pornography on January 24, 2012. The appellant was sentenced to five months’ imprisonment. He now appeals his conviction.

[4] On appeal, the appellant submits that the verdict is unreasonable because the trial judge failed to consider evidence that could have brought about an acquittal and misapprehended the evidence.

[5] Under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, this court may set aside a verdict if it is unreasonable or cannot be supported by the evidence. A verdict is unreasonable or cannot be supported by the evidence when the verdict is one that a properly instructed jury acting judicially could not reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2001] 1 S.C.R. 381, at para. 36. This is equally applicable to the judgment of a judge sitting without a jury: Biniaris, at para. 37.

[6] A misapprehension of the evidence will constitute a miscarriage of justice if the trial judge was mistaken as to the substance of material parts of the evidence, and those errors played an essential part in the reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. The misapprehension must go to the substance rather than to the detail and must be material rather than peripheral to the reasoning of the trial judge: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. The errors must play an essential part in the reasoning process resulting in a conviction.

[7] The appellant’s main argument is that the trial judge misapprehended and failed to consider relevant evidence with respect to the appellant’s knowledge of the existence of pornographic images on his laptop, particularly the evidence about the icons on his computer’s desktop.

[8] The trial judge considered the defence’s arguments, including those about how the Windows Live Messenger screen would obscure the desktop and the accessibility to the internet using the Start menu/taskbar. A review of the exchange between the trial judge and expert witness confirms that he was alive to this evidence and what the appellant would have seen when he opened the computer.

[9] The trial judge considered and rejected the arguments presented by the defence. He concluded that the desktop is an essential feature of any computer, regardless of whether most programs can be accessed from the Start menu and taskbar. There were numerous icons on the desktop with names obviously related to child pornography. Many of these included the abbreviation “pthc” (pre-teen hard-core). Ten of these icons linked directly to child pornography videos. Whether the icons were opened or not is irrelevant. What is relevant is that the icons were in plain sight. The desktop included other icons such as iTunes. The theory that the appellant could have used his laptop without viewing the desktop defies common sense.

[10] The trial judge’s conclusion is supported by the fact that child pornography was found elsewhere on the computer. There were child pornography films or images in the computer’s Recycle Bin, the cache folder of the appellant’s Windows Live Messenger account, and the default files associated with peer-to-peer file sharing programs. The trial judge, in our view, did not misapprehend the evidence.

[11] The appellant also argues that the verdict is unreasonable. As Biniaris and other subsequent cases dictate, the scope of appellate review for unreasonableness is narrow. In our view, there was ample evidence upon which a trier of fact could conclude that the appellant was in possession of child pornography. Accordingly, we see no merit to this ground.

[12] The appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”