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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-02-23

Docket: C62698 and C62585

Panel: Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

Between:

Her Majesty the Queen Respondent/Appellant

and

Robert Capancioni Appellant/Respondent

Counsel:

• Andrew Furgiuele, for the appellant/respondent on Crown appeal
• Melissa Adams, for the respondent/appellant on Crown appeal

Heard: January 22, 2018

On appeal from: The conviction and the acquittal entered by Justice Edward Gareau of the Superior Court of Justice, dated July 27, 2016.

Decision

Hoy A.C.J.O.:

[1] Introduction

[1] Robert Capancioni was convicted of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code, but acquitted of making child pornography available, contrary to s. 163.1(3) of the Criminal Code.

[2] He appeals his conviction on Charter grounds, arguing that the search of his residence and computer violated his rights under s. 8 of the Charter of Rights and Freedoms and the evidence flowing from it should have been excluded under s. 24(2) of the Charter. The Crown concedes that the search was unlawful. Therefore, the narrow issue on Mr. Capancioni's appeal is whether the evidence flowing from the unlawful search should have been excluded under s. 24(2) of the Charter.

[3] The Crown appeals Mr. Capancioni's acquittal on the count of making child pornography available, arguing that the trial judge erred in his application of the mens rea requirement for making child pornography available under s. 163.1(3) of the Code.

I. THE BACKGROUND

[4] A host of computer applications have been developed for the purpose of allowing individual computer users to obtain and share information over the internet. They use what are referred to as "peer-to-peer" networks.

[5] The Internet Crimes Against Children Task Force uses sophisticated investigative software to investigate suspected child pornography possessors and traffickers within these peer-to-peer networks. The Task Force suspected that internet protocol ("IP") address 24.109.39.74 (the "Address") was downloading and sharing child pornography on the internet through a peer-to-peer file sharing software program.

[6] As a result of the Task Force's suspicions, Detective Constable Erkkila began monitoring the Address in November 2012.

[7] On December 2, 2012, Erkkila identified and downloaded a suspect file located at the Address. Erkkila was not satisfied that the downloaded images that were able to be viewed met the definition of child pornography, although one image showed a naked prepubescent female who appeared to be approximately 10 years of age. She lay on her back, on a red shag carpet, with her body oriented away from the camera.

[8] The 40-digit "peer ID number", that is, the serial number identifying the specific installation of the file sharing software on the computer from which Erkkila downloaded the file, was recorded.

[9] Information about the general geographic location of the Address was publicly available over the internet. The Address was registered to Shaw Communications Inc. On December 3, 2012, Erkkila submitted a Law Enforcement Request ("LER") to Shaw, requesting the subscriber information for the Address. On December 5, 2012, Shaw provided the name and precise municipal address of the account holder, the appellant's spouse.

[10] On December 31, 2012, Erkkila downloaded from the Address two different files that police investigative software flagged as suspect. Both contained images of child pornography. At the time of each download, the 40-digit peer ID number indicating the specific installation of software on the suspect computer from which the file was downloaded was recorded. One set of downloaded images featured a prepubescent female who appeared to be between 8 and 10 years of age.

[11] Erkkila obtained a search warrant to search the house located at the address disclosed by Shaw in response to the LER and to search and seize the computer systems and all related devices and data located in the house.

[12] The evidence seized as a result of that search led to the appellant's conviction for possession of child pornography.

II. THE CHARTER APPEAL

The Reasons Below

[13] A year and a half after Erkkila submitted the LER to Shaw, the Supreme Court, in R. v. Spencer, 2014 SCC 43, determined that a police request that an internet service provider disclose subscriber information amounts to a search, and, if prior judicial authorization is not obtained, violates the subscriber's rights under s. 8 of the Charter.

[14] Applying Spencer in his Reasons on Charter Application, the trial judge found that Erkkila would not have had reasonable and probable grounds to obtain a judicial authorization at the time that he submitted the LER, and therefore, although consistent with police practice at the time, the LER was obtained in breach of the appellant's Charter rights.

[15] The trial judge then applied the three-pronged test in R. v. Grant, 2009 SCC 32, to determine if the admission of the evidence would bring the administration of justice into disrepute, or if the evidence should be admitted under s. 24(2) of the Charter.

[16] He found that the first Grant consideration – the seriousness of the Charter-infringing State conduct – favoured inclusion of the evidence. Erkkila was simply following procedures that, in the pre-Spencer world, he reasonably believed to be lawful. The second Grant consideration – the impact of the Charter breach on Mr. Capancioni's Charter-protected interests – favoured excluding the evidence. The violation of an individual's privacy rights is a serious matter. The third Grant factor – society's interest in the adjudication of the case on its merits – favoured the inclusion of the evidence. The evidence sought to be excluded was crucial to establishing that Mr. Capancioni accessed, possessed and made available child pornography. Balancing these three factors, the trial judge concluded that the exclusion of the evidence would bring the administration of justice into disrepute.

[17] The trial judge then turned to the appellant's argument that the Information to Obtain (the "ITO") the search warrant did not contain full and frank disclosure and misstated the facts.

[18] Erkkila acknowledged that he had mistakenly stated in the ITO that the same peer ID number was identified on his download of the file on December 2, and on the downloads of the two files on December 31. In fact, the first 16 digits of the 40-digit number were the same. Erkkila explained that he looked at the first 12 or 16 digits and, because they were the same, assumed that it was the same peer ID number.

[19] The trial judge found that there was no bad faith, and that Erkkila's error was inadvertent and inconsequential. In the trial judge's view, if the erroneous information were removed, the ITO provided reasonable and probable grounds for the issuance of the warrant.

[20] The trial judge explained that Erkkila:

[W]as very clear in his evidence that it is the IPA number, the internet protocol number, which identifies the internet location that the computer is attached to. It is the IP address that provides the link to the geographical address. The peer ID number does not assist in connecting the virtual world to the geographical location of the computer.

If the IP addresses were reported as being the same and they were in fact not, that would be a matter of consequence with respect to the ITO and the issuance of the search warrant.

[21] The trial judge concluded that there was no breach of Mr. Capancioni's s. 8 Charter rights "as it relates to the Information to Obtain". Given that conclusion, he did not address s. 24(2) of the Charter.

Section 24(2) Analysis

[22] On this appeal, the Crown concedes that the trial judge erred in his Charter analysis in relation to the error contained in the ITO. In determining whether there were reasonable and probable grounds for the issuance of the warrant, the trial judge should have excluded the information obtained pursuant to the LER, and not just the erroneous information about the peer ID number. The Crown concedes that without that information, the warrant to search the residence clearly could not have issued.

[23] It is agreed that, because of this error, this court must apply the three-prong test in Grant and conduct its own s. 24(2) analysis.

(i) Seriousness of the Charter-Infringing State Conduct

[24] With respect to the first Grant factor – the seriousness of the Charter-infringing state conduct that led to the breach of Mr. Capancioni's s. 8 Charter rights – like the trial judge, having regard to the circumstances, I would not characterize the making of the LER as serious Charter-infringing state conduct. As the trial judge reasoned, in making the LER, Erkkila followed procedures that he reasonably believed to be lawful and was proven wrong, after the fact, by developments in the jurisprudence.

[25] This leads to the significance of Erkkila's mistake in relation to the peer ID numbers in determining the seriousness of the state conduct that infringed Mr. Capancioni's s. 8 Charter rights.

[26] Mr. Capancioni does not dispute the trial judge's findings that Erkkila's error was inadvertent and there was no bad faith, and I agree with those important findings.

[27] Mr. Capancioni argues that the trial judge's conclusion that the "peer ID number does not assist in connecting the virtual world to the geographic location of the computer" resulted from a misapprehension of the corroborative importance of the peer ID numbers and led him to mistakenly characterize Erkkila's error as "inconsequential".

[28] In the ITO, Erkkila explained that an IP address can be static or dynamic, meaning that the subscriber's IP address may change. He indicated that, in his experience, Shaw subscribers "typically" have a dynamic IP address "but they may keep the same IP address for longer periods of time ranging from several days to several months."

[29] Assuming the Address was dynamic, Mr. Capancioni asserts that if the peer ID number had been the same on December 31 as on December 2, the fact that it was the same would have provided certainty that the Address had not been assigned to a different Shaw subscriber, located at a different address, after Shaw responded to the LER, and that, at the time that Erkkila swore the ITO, the Address remained associated with Mr. Capancioni's residence. Mr. Capancioni asserts that without such corroboration, the issuing judge could not have issued the warrant. Therefore, he submits, although Erkkila's mistake was inadvertent and there was no bad faith, his mistake was nonetheless serious Charter-infringing state conduct, and weighs in favour of the exclusion of the evidence.

[30] I agree with Mr. Capancioni that, although Erkkila was clear that he did not rely on the peer ID number to determine the location of the house, logically, had the peer ID number been the same at the time of the downloads on December 31 as on December 2, it would have had some corroborative value. However, I would not characterize Erkkila's mistake about the peer ID number as serious Charter-infringing state conduct favouring exclusion of the evidence.

[31] Turning first to the corroborative effect, Erkkila testified that the peer ID number is not information that he required to determine the location of the house, and that he included the peer ID number because he had this information during the investigation and wanted to ensure that he provided full, fair and frank disclosure to the issuing justice. Erkkila testified that the Address was in fact a static address. [1] He also testified that he had "the same Internet Protocol address on three different occasions…between the 2nd and 31st", and that he did not require another LER to confirm that the Address remained associated with the same subscriber.

[32] In lay terms, Erkkila explained that a peer ID number is specific to a program on a particular device. The IP address is associated with the router – the physical point at which internet access is provided to a residence or business. When internet is provided to the residence or business through the router, multiple devices – including those of visitors to the residence or business – can access the internet. The peer ID number permits police to determine which device accessed the internet through the IP address under investigation.

[33] If the peer ID number had been the same on December 31 as on December 2, it would have indicated that on both December 2 and December 31 the same device accessed the internet through the Address. In light of the information in the ITO that Shaw IP addresses are "typically" dynamic, logically, this could have provided the issuing justice with greater certainty that, on December 31, the Address remained associated with the same subscriber, and therefore the same municipal address, as on December 2.

[34] However, for several reasons I conclude that Erkkila's mistake in the ITO with respect to the peer ID number is not state conduct that favours exclusion of the evidence seized under the first Grant factor.

[35] First, the first line of inquiry under Grant necessitates an evaluation of the seriousness of the state conduct that led to the violation of the Charter – in this case the unlawful search of Mr. Capancioni's residence. The state conduct that led to the violation of the Charter was the unlawful search by making the LER. Without the information obtained in response to the LER, Erkkila could not and would not have sought the warrant. In light of this, his subsequent mistake in the ITO with respect to the peer ID number was, as the trial judge found (albeit for different reasons), inconsequential.

[36] Second, the trial judge accepted Erkkila's evidence that he did not rely on the peer ID number in determining the location of the house. As the trial judge erroneously considered the evidence in response to the LER linking Mr. Capancioni's house to the Address on December 3, he effectively considered the significance of Erkkila's error on a stand-alone basis. He found that Erkkila's error was inconsequential and there was sufficient information in the ITO to establish that evidence of child pornography would probably be found if Mr. Capancioni's house and computer were searched. Although the peer ID number had some corroborative value, if the information in response to the LER linking Mr. Capancioni's home to the Address could have been considered, this finding may well have been open to the trial judge given: the evidence of how and why the Task Force had identified the Address as suspect; the evidence of the photo of the nude pre-pubescent girl, approximately 10 years of age, downloaded via the Address on December 2; and the 77 images of child pornography downloaded on December 31 some of which featured a nude pre-pubescent girl who appeared to be between the ages of 8 and 10.

[37] Third, and significantly, Erkkila's mistake was inadvertent, and there was no bad faith. His mistake was made in the context of rapidly evolving technology. Two different peer ID numbers were associated with Mr. Capancioni's computer on December 31. This was the first investigation that Erkkila – an uncontested expert in the field of computer forensics who had been involved in approximately 40 to 50 child pornography investigations – had been involved with where the peer ID number changed.

(ii) Impact on the Charter-Protected Interests of the Accused

[38] The unlawful search impacted on Mr. Capancioni's Charter-protected privacy interests. As the Supreme Court noted in R. v. Morelli, 2010 SCC 8, at para. 105, it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. This factor weighs in favour of the exclusion of the evidence.

(iii) Society's Interest in an Adjudication on the Merits

[39] The evidence seized was reliable and critical to the prosecution's case. This factor favours admission of the evidence.

[40] Balancing my assessments under each of these three lines of inquiry, I conclude that the admission of the evidence would not bring the administration of justice into disrepute.

[41] Accordingly, I would dismiss Mr. Capancioni's conviction appeal.

III. THE CROWN APPEAL

[42] Mr. Capancioni was charged with making available child pornography between September 23, 2012 and January 15, 2013, contrary to s. 163.1(3) of the Criminal Code. That section provides as follows:

Distribution, etc. of child pornography

(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year. [Emphasis added.]

[43] The accepted evidence at trial was that the peer-to-peer file sharing program Azureus was located on Mr. Capancioni's computer.

[44] In a prosecution under s. 163.1(3) for making available child pornography, the Crown must prove that the accused had knowledge that the pornographic material was being made available. In the context of a file sharing program, the mens rea element of making available child pornography requires proof of the intent to make computer files containing child pornography available to others using that program or actual knowledge, or wilful blindness to the fact, that the file sharing program makes files available to others. There is no additional requirement on the Crown to prove that the accused knowingly, by some positive act, facilitated the availability of the material: see Spencer, at paras. 83, 84.

[45] The trial judge wrote, at para. 46 of his Reasons for Judgment:

From the description of how the Azureus file sharing program is installed given in evidence by Detective Constable Erkkila there are active steps to be followed to install this type of program on a computer. It would be difficult to believe that someone who was installing the Azureus program on their computer would not know that this program was a file sharing program where information and images could be downloaded from your computer to another computer which is also connected to the program, as put by Erkkila in his evidence, "When a person downloads this software, the terms of use and service must be agreed to before continuing the actual installation process". [Emphasis added.]

[46] Then, at para. 51, the trial judge concluded as follows:

... I am satisfied that the Crown… has established that the offence took place on December 31, 2012 when the material was downloaded to the police investigative computer, that the material downloaded were images of child pornography and that these images were made available by the accused, Robert Capancioni. Having said this, I can indicate that I am not satisfied beyond a reasonable doubt, in examining the totality of the evidence, that the Crown has proven that Robert Capancioni had the intent to make child pornography available to others. From the evidence it is entirely possible that Robert Capancioni was transferring images from his computer to another computer without expressly knowing that these images were being transferred. [Emphasis added.]

[47] The Crown argues that the trial judge erred in law by requiring the Crown to prove that Mr. Capancioni knew about a specific act of "distribution" on December 31, 2012, a more onerous mens rea element than required.

[48] I agree with the Crown that the trial judge erred by requiring the Crown to prove a more onerous mens rea element than required. Section 163.1(3) distinguishes between overt acts of dissemination, such as distribution, and the facilitation of the carrying out of those acts, such as "make available": see Spencer, at paras. 82, 83.

[49] The Crown was not required to prove that Mr. Capancioni had knowledge of an overt act of dissemination, namely that images of child pornography were being transferred to other computers. There was evidence that the images downloaded to the police investigative computer on December 31, 2012 had resided on Mr. Capancioni's computer and were available to other members of the Azureus network since early August 2012. As the Crown submits, it was only required to prove that Mr. Capancioni knew, or was willfully blind to the fact, that Azureus makes files available to others.

[50] I also agree that this error might reasonably be thought, in the concrete reality of this case, to have had a material bearing on the trial judge's decision to acquit Mr. Capancioni and therefore satisfies the test in R. v. Graveline, 2006 SCC 16, at para. 14, that must be met before an appeal of an acquittal by the Crown can succeed.

[51] The Crown argues that the trial judge made the finding necessary to support a finding of guilt on the count of making available at para. 46 of his reasons and, therefore, this court may substitute a verdict of guilty and remit the matter back to the trial judge for sentencing. I disagree. In my view, a new trial is required. The trial judge's finding at para. 46 is prefaced by the words "it would be difficult to believe". The mens rea requirement must be established beyond a reasonable doubt. Arguably, para. 46 is not a clear finding that the trial judge was satisfied beyond a reasonable doubt that Mr. Capancioni knew, or was wilfully blind to the fact, that the Azureus program shared data with other computers.

IV. DISPOSITION

[52] For these reasons, I would dismiss Mr. Capancioni's appeal and I would allow the Crown's appeal, overturn Mr. Capancioni's acquittal on the count of making child pornography available, and order a new trial on that count.

Released: February 23, 2018

"Alexandra Hoy A.C.J.O."

"I agree J.C. MacPherson J.A."

"I agree Paul Rouleau J.A."

[1] The transcript is not entirely clear whether this information was available to Erkkila at the time he swore the ITO.