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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 and Parties
Court of Appeal for Ontario
Date: 2018-03-02
Docket: C61138
Panel: Strathy C.J.O., Simmons and Hourigan JJ.A.
Between:
Her Majesty the Queen Respondent
and
Daniel Akenna Appellant
Counsel:
- Alan Gold, for the appellant
- Amy Alyea, for the respondent
Heard: February 27, 2018
On appeal from: The conviction entered on April 27, 2015 and the sentence imposed on October 15, 2015 by Justice Robert Graydon of the Ontario Court of Justice, sitting without a jury.
Reasons for Decision
[1] Charges and Conviction
Daniel Akenna was charged with one count each of possession of child pornography, making available child pornography, and breach of probation. He was convicted at trial of possession of child pornography and breach of probation. The charge of making available child pornography was dismissed at the request of the Crown.
[2] Grounds of Appeal
On appeal, the appellant submits that a miscarriage of justice has occurred as a result of the ineffective assistance of counsel on the grounds that:
The admission in an agreed statement of facts that "[d]uring the search warrant, Janet Bradley, the mother of Daniel Akenna, indicated that only her and Akenna were present in the house on the 25th and 26th of September 2013" was made without his knowledge or agreement, which materially affects the findings of guilt; and
The admissibility of his video statement to police was conceded, without his concurrence and without a full investigation of the circumstances immediately prior to and surrounding the making of the statement.
[3] Relief Sought
On the basis of this alleged miscarriage of justice, the appellant seeks an order for a new trial. He abandoned his sentence appeal.
[4] Disposition
For the reasons that follow, we dismiss the appeal on the basis that the appellant has not shown that a miscarriage of justice resulted from the alleged ineffective assistance of counsel.
[5] Substantial Independent Evidence
In our view, even if the appellant is correct that his videotaped police interview should not have been admitted and/or that his mother's statement should not have been included in the agreed statement of facts, there remains a substantial body of evidence from which the trial judge could have made the same factual findings and convicted the appellant of possession of child pornography and breach of probation.
[6] Evidence Supporting Conviction
This body of evidence includes the following:
The appellant owned the computer that police seized with a hard drive in it containing the child pornography files.
The registered owner of the Windows operating system on the computer was "dan". The user enters that information when he or she installs the operating system.
The user account only showed one active user registered on the computer and that account was in the name of "dan".
The profile "dan" was the only active user on the hard drive where the child pornography was found, in an encrypted folder.
The encrypted folder was password-protected. The password required to access the encrypted folder was the same password that was required to log into Windows on the profile "dan".
The child pornography videos were downloaded to a separate hard drive from the one on which the peer-to-peer file sharing programs were downloaded.
Detective Constable Townsend testified that no one had access to the computer remotely or from outside the home.
Between 3:56:44 p.m. and 4:48:13 p.m. on September 25, 2013, the user visited a website, watched a YouTube video and used Facebook through an account in the name of dan.akenna to view a post made earlier in the day by "Dan Akenna".
On September 25, 2013, from 4:57:43 p.m. to 6:53:54 p.m., the user downloaded a number of peer-to-peer file sharing programs. The first download of child pornography was completed at 7:13:37 p.m. on September 25, 2013 and the last download of child pornography was initiated at 9:04:17 p.m. on September 25, 2013. At 7:52:53 p.m. that evening, the user logged into the Facebook account "dan.akenna" and at 7:54:08 p.m., the user logged into an email account "civic_street_racer@hotmail.com". The email address had fields populated with the appellant's personal data information including his first name, last name, address, and postal code.
The search history on the computer in the days leading up to the downloading of the child pornography was consistent with the search history during the time the child pornography was downloading. Similar searches were also conducted the day after the child pornography was downloaded.
[7] Conclusion
Given the substantial body of evidence unrelated to the appellant's police interview or his mother's statement, the appellant has not shown that the competent performance of counsel – if indeed counsel was incompetent – might reasonably have resulted in a different verdict. We conclude that there is no reasonable prospect that the result would be different based on the record below or on this appeal. In the result, the appellant has not demonstrated that a miscarriage of justice occurred. The appeal is dismissed.
G.R. Strathy C.J.O.
Janet Simmons J.A.
C.W. Hourigan J.A.