Court of Appeal for Ontario
Date: 2017-07-26
Docket: C60510
Judges: Strathy C.J.O., Benotto and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Reza Aalami Appellant
Counsel:
- Gregory Lafontaine and R. Golec, for the appellant
- Shawn Porter, for the respondent
Heard: June 19, 2017
On appeal from: The conviction entered on July 14, 2014 and from the sentence imposed on May 20, 2015 by Justice Hugh K. Atwood of the Ontario Court of Justice.
Reasons for Decision
A. Introduction
[1] At the conclusion of oral submissions, we dismissed the appeal with reasons to follow. These are those reasons.
[2] The appellant was convicted of possession of child pornography and making child pornography available. He was sentenced to one year imprisonment for possession and two years for making available, served concurrently. He appeals his convictions on the basis that the trial judge erred: (i) in dismissing his application under s. 11(b) of the Charter; (ii) in dismissing his application under s. 8 of the Charter; and (iii) in his credibility assessments of defence witnesses. The appellant also seeks leave to appeal his sentence on the basis that the trial judge erred in failing to apply the Kienapple principle.
B. Background
Facts
[3] The appellant's conviction arose from his alleged use of a file-sharing network called GigaTribe. The critical evidence against the appellant came from Detective Sergeant Parisien. Parisien is an officer with the Saskatoon Police Service who has extensive experience investigating child exploitation and the use of GigaTribe. GigaTribe is a closed, peer-to-peer network, meaning users must invite and connect to others to share files. In Parisien's experience, he had seen "little or no one using [GigaTribe] for any legitimate purpose."
[4] On October 14, 2010, Parisien was investigating GigaTribe using a covert account. He received three messages from user "Peter1111". Parisien saw that Peter1111 was sharing three identical folders, which each contained 1,310 files, totalling 825 megabytes. They contained child pornography. Parisien subsequently obtained Peter1111's Internet Protocol ("IP") address, determined the relevant Internet Service Provider, and requested and received the subscriber information. This information revealed the user of the Peter1111 account was in Mississauga, Ontario, so Parisien passed the file over to the Peel Regional Police.
[5] The Peel Regional Police submitted an information to obtain ("ITO") in November 2011. They executed a warranted search at the appellant's residence on December 22, 2011 and seized a laptop.
[6] Police Constable MacDonald – an expert in forensic computer analysis with the Peel Regional Police – examined the laptop and testified that GigaTribe was installed on the computer with the single user account Peter1111. There were 49 images of readily accessible child pornography on the laptop.
[7] Charges were laid against the appellant on January 6, 2012. He was arrested on January 16, 2012.
Section 11(b) Application
[8] On April 2, 2013, the appellant applied for an order staying the charges on the basis that his s. 11(b) Charter rights had been violated. The trial judge dismissed the application with reasons to follow. The reasons were never delivered.
Section 8 Application
[9] The appellant changed counsel at the end of April 2013. On October 11, 2013, the appellant's new counsel brought an application to exclude the laptop information on the basis that the appellant's rights under s. 8 of the Charter had been violated. He submitted that Parisien had intercepted and recorded the appellant's private communications without prior judicial authorization. This information formed the basis for the ITO, which then became tainted. He also argued the delay involved in the transfer of the file from Saskatoon to the Peel Regional Police meant the information relied on in the ITO was "stale-dated".
[10] The trial judge dismissed the application.
The Trial
[11] The matter proceeded to trial and the appellant testified. He confirmed he had downloaded GigaTribe onto the laptop and Peter1111 was his user name. He denied using GigaTribe for child pornography purposes. He testified his computer was password protected, but everybody knew the password, and he would often leave it lying around the house (where his brother also lived).
[12] The appellant's brother testified that he used the laptop and he downloaded child pornography onto that laptop. He said he would do this while the appellant was sleeping or not at home, using GigaTribe, which was already installed on the laptop.
[13] The trial judge rejected the evidence of the appellant and his brother. The trial judge then reviewed the principles set out in the Supreme Court's decision in R. v. W.(D.), [1991] 1 S.C.R. 742. Applying those principles, he concluded the Crown had met its burden and convicted the appellant of both possession of child pornography and making child pornography available.
[14] The appellant was convicted on July 14, 2014. The appellant changed counsel again and was ultimately sentenced on May 20, 2015.
C. Issues
[15] The appellant raises the following grounds of appeal:
The trial judge erred in not providing reasons for his dismissal of the appellant's s. 11(b) Charter application.
The trial judge erred in not finding a breach of the appellant's rights under s. 8 of the Charter and by not excluding evidence obtained as a result of that breach pursuant to s. 24(2).
The trial judge erred in his credibility assessments of defence witnesses.
The trial judge erred in not staying the conviction for possession of child pornography pursuant to the Kienapple principle.
D. Discussion
(1) Did the trial judge err in not providing reasons for his dismissal of the appellant's s. 11(b) Charter application?
[16] As the Crown acknowledged, the trial judge erred in principle by failing to provide reasons for his decision to dismiss the appellant's s. 11(b) application. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, has been repeatedly cited and relied on to underscore a judge's obligation to deliver a reasoned decision.
[17] The appellant submits the judge's failure to provide reasons requires this court to order a new trial.
[18] We do not agree. As also stated in Sheppard, there is no need for a new trial when the appellate court considers itself able to explain the result to the parties. In this situation, the error of law can be cured pursuant to the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46: Sheppard, at para. 55.
[19] There were no credibility issues before the court on the s. 11(b) motion. The parties filed factums. This court is able to explain the result to the parties.
[20] The application was argued under the framework in R. v. Morin, [1992] 1 S.C.R. 771. The evidence disclosed that, although the intake period occasioned a slight delay, the court was ready to set trial dates in May 2012 for later the same year. The appellant, however, declined to set a target trial date until he had the final forensic report.
[21] Once a trial date was set, the trial was anticipated to conclude in July 2013. On the s. 11(b) application, the court considered this anticipated trial completion date to calculate the period of delay. Thus, on April 2, 2013 – when the application judge heard and decided the s. 11(b) application – the relevant period of delay was 17 months, 24 days. This is below the post-Jordan 18-month presumptive ceiling for matters in the Ontario Court of Justice, and there is no evidence supporting a stay under these circumstances: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[22] The appellant further submits the period of delay for this court's consideration should be expanded. Despite the anticipated end date of July 2013, the trial was not actually started until October 2013, and it was not completed until May 2014. Judgment was delivered in July 2014. This resulted in a period of delay of over 29 months.
[23] The problem with the appellant's submission with respect to the expanded timeframe is that this court has not been provided with a record.
[24] The recent decision of this court in R. v. Gordon, 2017 ONCA 436, sets out the steps to follow where a matter that was started under the pre-Jordan system is determined post-Jordan.
[25] First, any time attributable to defence delay must be subtracted from the total delay to determine the "net delay". From the partial record before this court, it is clear there is delay attributable to the defence. For example, the appellant changed lawyers twice. Second, the court must consider any "exceptional circumstances" or unexpected events. Third, the court must consider the "transitional exceptional circumstances" arising from reasonable reliance on the Morin criteria. As Doherty J.A. stated in Gordon, at paras. 19 and 23:
Jordan recognized that the new approach to delay could not simply be applied without qualification to those cases that were in the system prior to the release of Jordan and had proceeded on the basis that Morin established the constitutional standard for unreasonable delay.
In most cases, especially when all of the delay occurred prior to the release of Jordan, if the court concludes that the delay was not unreasonable under Morin, the transitional exceptional circumstance described in Jordan will justify delays beyond [the presumptive ceiling].
[26] The absence of a record creates an insurmountable hurdle for the appellant. We are unable to consider the reasonableness of the delay – or indeed where the onus lies – without a record of events after April 2, 2013. On an 11(b) application, the court expects all transcripts of all relevant proceedings to be filed: see R. v. Allen (1996), 92 O.A.C. 345, at p. 344.
[27] We therefore conclude the trial judge did not err in dismissing the April 2, 2013 application, and we are unable to expand the inquiry to include the actual time to judgment, as there is no record.
(2) Did the trial judge err in not finding a breach of the appellant's rights under s. 8 of the Charter and by not excluding evidence obtained as a result of that breach pursuant to s. 24(2)?
[28] When the trial judge dismissed the appellant's s. 8 application, he did not have the benefit of the Supreme Court's decision in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, which found that requests for Internet subscriber information that are warrantless engage serious privacy interests and therefore violate s. 8 of the Charter. The Crown concedes, pursuant to Spencer, the appellant's s. 8 rights were infringed.
[29] The appellant submits there was a further breach of s. 8 because of the staleness of the information underlying the ITO. We do not agree. The application judge concluded, based on the evidence available to the judicial officer considering the ITO, that there were reasonable and probable grounds to believe there was evidence that could be obtained from a search warrant. We see no basis to interfere with that conclusion.
[30] We agree, however, in light of Spencer, the appellant's Charter rights were violated with respect to the police's requests for Internet subscriber information. Having found otherwise, the application judge did not proceed to a s. 24(2) analysis. This court, however, is in a position to do so.
[31] The test for applying s. 24(2) is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The court must "assess and balance the effect of admitting the evidence on society's confidence in the justice system", having regard to the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits: Grant, at para. 71.
[32] Here, the state conduct cannot be characterized as a willful or flagrant disregard of the Charter. The law was different at the time of the search, and the nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.
[33] Second, the impact of the Charter-infringing conduct on the appellant's Charter-protected privacy rights was serious, which weighs in favour of excluding the evidence.
[34] Lastly, we consider society's interest in adjudicating the case on the merits. As explained in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach: Grant, at para. 84.
[35] The offences here involve the victimization of children. The trial judge opined that the images were among the most extreme he had ever seen. If the evidence is excluded, the Crown will effectively have no case. The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence at trial to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children.
[36] It is notable that in Spencer, Cromwell J. balanced the three factors in Grant and concluded: "exclusion of the evidence rather than its admission would bring the administration of justice into disrepute": at para. 81. Here, we come to the same conclusion.
(3) Did the trial judge err in his credibility assessments of defence witnesses?
[37] The appellant submits the trial judge held the defence witnesses to a different standard than he did the Crown's with respect to their credibility. In particular, the trial judge referred to Crown witnesses' evidence as being "uncontradicted" and referred explicitly to evidence he would have expected the defence to lead to support its theory – for example, evidence there had been a virus installed on the appellant's computer, or evidence that would refute the believed identity of the Peter1111 account's user – which effectively reversed the burden of proof.
[38] We do not agree.
[39] The trial judge explicitly adverted to the Supreme Court's judgment in W.(D.) and applied it to his reasons. In referring to the Crown's witnesses' evidence as "uncontradicted", the trial judge did not reverse the burden of proof. Rather, he was describing the state of the evidence.
[40] Nor did the trial judge subject defence evidence to a higher level of scrutiny than the Crown's evidence. The main aspects of the witnesses' testimony did not overlap. The Crown's witnesses testified largely to the results of forensic examination of the appellant's computer, whereas the appellant and his brother were discussing the use of the computer. In any event, the trial judge gave cogent and detailed reasons for his findings, which are entitled to deference.
[41] We do not give effect to this ground of appeal.
(4) Did the trial judge err in not staying the conviction for possession of child pornography pursuant to the Kienapple principle?
[42] The appellant seeks leave to appeal his sentence on the basis that the trial judge should have applied the Kienapple principle to stay the charge of making child pornography available because both convictions arose from the same facts and time period. In failing to do so, the trial judge committed a reversible error.
[43] We do not accept this submission.
[44] There is no legal nexus between the offences of possession of child pornography and making child pornography available. The former involves possession, the latter involves distribution. In the circumstances of this case, a factual nexus is also absent. In any event, since the sentences were imposed concurrently, there is no practical result stemming from applying the Kienapple principle in terms of the effect on the overall sentence.
E. Disposition
[45] For these reasons, the appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.
"George R. Strathy C.J.O."
"M.L. Benotto J.A."
"B.W. Miller J.A."