COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carlos, 2016 ONCA 920

DATE: 20161207

DOCKET: C61709

Feldman, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Josue Natal Carlos

Appellant

Paul Calarco, for the appellant

Susan Magotiaux, for the respondent

Heard: November 28, 2016

On appeal from the conviction entered on October 1, 2015 and the sentence imposed on December 30, 2015 by Justice Meredith Donohue of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of possession of child pornography and making child pornography available contrary to ss. 163.1(3) and (4) of the Criminal Code and sentenced to three years in penitentiary. The child pornography was found on his computer in a file sharing folder. He appeals his convictions and sentence.

[2] The appellant raised a number of grounds of appeal that counsel grouped together for the purpose of argument. The first ground is that the trial judge erred by allowing the Crown to cross-examine the appellant on part of the contents of the computer that were not the subject of the charges without conducting an admissibility voir dire. The appellant contends that this improperly allowed evidence of discreditable conduct to be before the court.

[3] The Crown refuted this contention. At trial, the forensic report of the contents of the computer was made an exhibit on consent during the Crown’s case in chief. The impugned portions of those contents were not relied upon by the Crown until the appellant testified, denying knowledge of the contents of the computer storage and that certain search terms, such as “Tara”, were for child pornography. Those terms had been searched previously and appeared in the impugned registry. The purpose of the cross-examination was to challenge the credibility of the appellant on this important issue, and the trial judge used her analysis of the cross-examination evidence for that purpose and did not engage in propensity reasoning. Also, no objection was taken by defence counsel at the time, nor was there any request for a voir dire. There is no merit to this ground of appeal.

[4] The second ground is that the Crown breached the appellant’s right to silence by asking him questions as to why, during his police statement, he did not tell the police officer certain things that he said at trial. We also see no merit in this ground. The Crown’s questions were proper cross-examination on the inconsistencies between what the appellant said in the statement and what he said at trial, and did not undermine the appellant’s right to silence.

[5] The third ground raised is that the Crown improperly objected to an alleged R. v. Edgar, 2010 ONCA 529 statement by the appellant, when the appellant tried to bring out his immediate reaction of shock when he was first arrested. The problem with this submission is that at trial, defence counsel agreed with the Crown’s objection and the statement was never made part of the record. This court therefore has no basis to consider the issue. The fact that defence counsel agreed that the statement was not admissible, while not determinative, is some indication that the statement would not have assisted the appellant.

[6] As the fourth ground, the appellant submits that the trial judge did not consider that the appellant had no intent to possess or control the child pornography images because he deleted them, he said, immediately after he saw they were child pornography. We do not agree. The trial judge specifically addressed the elements of possession and control. She was aware of the evidence that he had deleted the files, but her failure to refer to it does not mean she did not consider it. To the contrary, based on the evidence she considered determinative of his possession and control, including his search history and the fact that the files were stored to be shared, it is clear that she did not consider his deletion of the files as an indication that he did not intend to possess or control them.

[7] The conviction appeal is dismissed.

[8] The appellant also seeks leave to appeal sentence. He submits that as a first offender who is a low risk to reoffend, a reformatory sentence was sufficient to meet all sentencing objectives, while a penitentiary sentence represented an overemphasis on denunciation and general deterrence.

[9] In our view, the trial judge imposed a sentence that was within the range for these offences, which included not only possession of child pornography but making it available. There is no basis to interfere with her decision on this issue to which considerable deference is owed.

[10] While leave to appeal sentence is granted, the appeal is dismissed.

“K. Feldman J.A.”

“David Watt J.A.”

“Grant Huscroft J.A.”