COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tweedle, 2016 ONCA 983

DATE: 20161229

DOCKET: C59865

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Tweedle

Appellant

Jennifer Trehearne and Kimberly Lederri, for the appellant

Michael Fawcett, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on July 3, 2014 and the sentence imposed on December 12, 2014 by Justice Mary Teresa E. Devlin of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions for possession of child pornography and making child pornography available. He also seeks to appeal his sentence of 20 months’ imprisonment.

[2] The appellant was arrested after an undercover agent identified online activities suggesting that the appellant was sharing child pornography on a peer-to-peer software program. The police executed a search warrant on the appellant’s home and seized two laptops, a Samsung and a Toshiba, and two external hard drives. They were forensically examined and disclosed 29 videos and 431 pictures of child pornography as well as chat logs from a Yahoo account, in which someone whose username was sometimes listed as “Ian T” discussed his strong interest in child pornography and abusing children.

[3] The only issue at trial was whether the images of child pornography were on the appellant’s devices with his knowledge and control. The appellant testified that he had downloaded and shared with others thousands of files of adult pornography. He had also created a file into which others could transfer pornography remotely, enabling the sender to choose the pornography he would receive. The appellant denied being interested in or knowingly downloading or receiving child pornography. He claimed that he had received child pornography from others but as soon as he realized what it was, he deleted it and blocked the sender. He described in detail four occasions when this had happened. The appellant also denied participating in the chat log conversation. Although his email address was similar, he denied having a Yahoo account.

[4] The trial judge accepted the appellant’s evidence that on approximately four occasions he received child pornography that he had deleted, and that he took steps to block the suspected sources of the materials. Indeed, the forensic analysis supported that most of the child pornography on one laptop and its external hard drive had been deleted.

[5] The trial judge, however, did not accept that the appellant had received child pornography on only four occasions. Based on the forensic analysis, a considerable amount of child pornography remained and had not been deleted, in particular on the external hard drive for the Samsung laptop. The trial judge rejected the appellant’s evidence that he never had a Yahoo account. This conclusion was based on the location of the chats and their subject matter, which was consistent with the type of chats the appellant admitted he engaged in. In any event, irrespective of who owned the Yahoo account, its contents (which included child pornography) were meticulously organized on the appellant’s computer.

[6] The trial judge rejected the defence of innocent possession, namely that the appellant intended to delete any child pornography that had ended up on his devices without his knowledge. She referred to the substantial quantity of child pornography located in three separate places, the sophisticated organization of the material, the explicit names of the files, which would have alerted the appellant to their contents even if he did not view the files, and the fact that “most if not all” the child pornography on the appellant’s Samsung computer and external hard drive had not been deleted.

[7] The trial judge also concluded that the offence of distributing child pornography was made out. The appellant purchased and used a file sharing program, GigaTribe, that required users to determine what material is shared. He knew he was storing child pornography on his computer and there was no evidence he took steps to block the sharing of files containing child pornography.

[8] There are three grounds on the conviction appeal.

[9] First, the appellant says that the trial judge failed to apply the second branch of the test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. In particular, the appellant says that the trial judge, having accepted that the appellant had deleted child pornography and took steps to block the sender on four occasions, did not assess whether such evidence raised a reasonable doubt about the appellant’s knowledge of the child pornography found on his devices.

[10] We do not give effect to this argument. The trial judge was alive to and recited the W.(D.) test in her reasons. She correctly stated that she was to consider the appellant’s evidence in the context of the evidence as a whole, and that she could accept some, none or all of a witness’s evidence. While she accepted the appellant’s evidence that he had taken steps on four occasions to delete some child pornography from his devices (which was supported by the forensic analysis that revealed that most of the child pornography on the Toshiba laptop and its external hard drive had been deleted), she did not accept the inference the appellant wanted her to draw, which was that the deletion of child pornography on four occasions meant that any child pornography remaining on his devices was there without his knowledge. There is no indication that the trial judge failed to consider whether such evidence raised a reasonable doubt. There was compelling evidence to support the trial judge’s conclusion regarding the appellant’s knowledge, including the significant volume of child pornography that remained on the appellant’s devices, his statement to the police that they would find child pornography on his computers when they were examined, and the careful indexing and organization of the child pornography collection on the devices.

[11] Second, the appellant says that the trial judge misapprehended the evidence on two key points: first, when she said that most, if not all of the child pornography on the new external hard drive had not been deleted (when the evidence was simply that it was “accessible”), and second when she stated that the appellant’s evidence was that he had received child pornography on only four occasions. The appellant says that these were material misapprehensions that deprived him of a fair trial or, alternatively, constituted a miscarriage of justice. The appellant also says that the trial judge failed to consider certain evidence, including that the child pornography was found among hundreds of thousands of other files and the lack of evidence regarding whether the files containing child pornography had been accessed despite it being forensically possible for the Crown to prove this fact.

[12] We disagree.

[13] The trial judge’s conclusion that the majority of the images found on the Samsung device had not been deleted was consistent with the evidence that the majority of the images were accessible. The evidence distinguished between files that remained accessible and those that were only recoverable through forensic analysis. While the trial judge did not specifically acknowledge the forensic evidence that accessible files could include files that were in the recycle bin, the evidence was that the appellant understood the distinction and that moving files to the recycle bin did not in fact delete them.

[14] The trial judge stated that she rejected the appellant’s evidence that he only obtained isolated images of child pornography and one video on the four occasions he had described (when he immediately deleted the images). We do not agree that this reflects a misunderstanding of the appellant’s evidence and defence, which was that he unknowingly received other images of child pornography that he had not yet discovered and deleted. She carefully considered the evidence, focusing on the appellant’s defence of innocent possession. In this regard, the evidence of the appellant’s careful indexing and organization of the materials on his hard drives was inconsistent with innocent possession.

[15] We do not agree that the trial judge overlooked material evidence. In particular, she was aware that the child pornography represented a small percentage of the significant volume of pornography on the appellant’s devices. The fact that she refused to draw the inference the appellant sought to be drawn, that his real interest was in adult pornography and that the child pornography was there without his knowledge, does not mean that she ignored this evidence.

[16] Third, the appellant argues that the reasons for judgment were insufficient. The focus, however, is on the specific points previously addressed – that the trial judge failed to explain why the alleged contradiction between her acceptance of the appellant having deleted child pornography on certain occasions and her subsequent finding that the appellant knowingly possessed child pornography did not leave her with a reasonable doubt, and why she did not have a reasonable doubt based on the forensic evidence (or lack thereof).

[17] We disagree. The reasons for judgment clearly explained why the appellant was found guilty and convicted of the offence charged. This was an overwhelming case for the Crown. In dismissing the appellant’s innocent possession defence, the trial judge clearly explained her reliance on the sophisticated organization of the material, the explicit names of the files, and the fact that most of the child pornography had not been deleted. She also referred to the fact that the contents of the Yahoo account, which included child pornography, were stored and meticulously organized on the appellant’s computer, whether or not the Yahoo account belonged to him.

[18] The conviction appeal is accordingly dismissed.

[19] The appellant raises two arguments on his sentence appeal. First, he says that the trial judge erred in finding that the amount of child pornography was an aggravating factor when she failed to distinguish between the number of unique items of child pornography on the appellant’s devices (137 images and 22 videos) versus the total amount of child pornography (29 videos and 431 images) that includes duplicates appearing on more than one device. Second, the appellant says that the trial judge erred in characterizing the fact that the pornography was distributed on multiple occasions to multiple users as an extremely aggravating factor in the absence of specific evidence as to the number of times the appellant had shared child pornography with others.

[20] While we grant leave to appeal sentence, we dismiss the sentence appeal.

[21] There was no error in the trial judge’s approach to sentencing in this case. The appellant’s counsel at trial did not distinguish between the number of images on the appellant’s devices that were unique and how many were copies, and how that might reflect on the appellant’s culpability. Whether the appellant’s collection consisted of unique or duplicate images, it was substantial and contained horrific images of abuse of children of all ages. Further, while there was no specific evidence as to the number of occasions on which the appellant shared child pornography files, the conclusion that he had distributed child pornography on multiple occasions to multiple users was apparent from his participation in a file sharing program, with no evidence that he had blocked the sharing of files containing child pornography.

[22] The mandatory minimum sentence for this offence was one year imprisonment. The reformatory sentence here of 20 months was well within the appropriate range, took into account the relevant mitigating and aggravating factors, and was not demonstrably unfit.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”