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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 2019-11-26

Docket: C65181

Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

B.G. Appellant

Counsel:

• Dano Sahulka, D. Lea Scardicchio and Efstathios Balopoulos, for the appellant
• Michael Perlin, for the respondent

Heard: November 15, 2019

On appeal from: the convictions entered by Justice Jon-Jo Douglas of the Ontario Court of Justice on December 1, 2017.

Reasons for Decision

[1] The appellant was convicted of child pornography offences and offences associated with the sexual touching of the victim (his daughter) in relation to three series of photographs that were found on the Internet depicting his daughter and parts of her body in a manner that amounted to child pornography. He was sentenced to four years in custody. He appealed his conviction alone.

[2] We dismissed his appeal from conviction, with reasons to follow. These are those reasons.

[3] Upon searching the pornographic photographs found on the Internet for their exchangeable image file format data ("EXIFF data"), police discovered that the photographs were taken at the appellant's residence, the appellant's former partner's residence, and two other locations accessible to the appellant. The appellant admitted to taking many of the "innocent" photographs of the victim that were found on the Internet, but denied taking the more egregious pornographic ones, and denied that he willfully distributed any of the photographs. He suggested that the victim's mother and new boyfriend also had an opportunity to commit the offences.

[4] The trial judge rejected the appellant's evidence. He accepted that the appellant did not have an exclusive opportunity to take the photographs. However, he reasoned that the appellant's contention that he had not taken all the photos depended on an improbable series of events being true: the "innocent" photos he admitted having taken having somehow being hacked from among the thousands of photos on his system before he deleted them becoming intermingled with a series of pornographic images of the same victim, taken in the same timeframe, by someone else who had access to the victim, his residence, the mother's residence, and the aquatic centre he frequented with the victim. Applying R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, he concluded that the circumstances were consistent with the appellant having committed the offences, and "there [were] no other reasonable, alternative inferences that either support the innocence of the [appellant], or more importantly, raise a reasonable doubt".

[5] On appeal, the appellant advanced two arguments.

First Argument: EXIFF Data and Photograph Cropping

[6] First, he argued that the trial judge took improper judicial notice of the EXIFF data contained within the photographs to conclude that the photographs had not been cropped. He testified that he did not crop the photographs. He argues that, if some of the photographs were cropped, it suggests that the photos might have been taken by someone else.

[7] We reject this argument. The trial judge did not err in rejecting the appellant's trial counsel's submission that some of the photos were cropped. There was no evidence that the photos had been cropped. With respect to the EXIFF data, the trial judge simply noted that it suggests support for Police Constable Redgate's tentative view that there was no cropping of the original iPhone pictures in issue. Moreover, even if the photos were cropped, there was no evidence, and it was not argued, that only the person who takes a photograph can crop it.

Second Argument: The Mole on the Hand

[8] Second, the appellant submits that the only concrete, relevant evidence in this almost exclusively circumstantial case was that the left adult-male hand that held the victim's underwear aside in order to take a picture of the victim's vagina that appeared in two of the sexually explicit photos had a mole on it, and the appellant did not have a mole on his left hand. A reasonable inference was that the adult with a mole on his hand, and not the appellant, took all the photos. The appellant submits that the trial judge erred by treating the evidence of the mole as "neutral", and, in the result, erred in his application of Villaroman.

[9] We reject this argument. The evidence on whether the appellant had a mole or spot on his hand at the time of the offences was equivocal.

[10] Officer Power testified about the left adult-male hand depicted in the two photographs and indicated she saw a dark spot she believed to be a mole. She also observed that some photos from the appellant's Facebook page depicted what she believed to be the appellant's hand bearing the same mole. However, when she interviewed him, she did not see the dark mark. Rather, she observed a white mark on his hand in roughly the same location as the mole in the pictures. She explained that in her experience as a victim identification officer, marks on hands can change. Dark moles can lose pigmentation and become white.

[11] The appellant accepted in cross-examination that one of the photos from his Facebook page depicted his hand and showed a mole on his hand. He also testified that the hand depicted in another photo from his Facebook account was not his, "because mine does not have a mole". However, in his police statement, the appellant had admitted that that photo depicted his hand.

[12] The trial judge considered the Facebook photographs of the appellant's hand and the hand that appeared in the two sexually explicit photos. He noted that the appellant's answers were "quite contradictory". He concluded that, based on the photos, he was not able to form any sort of opinion as to similarity. Further, he concluded it would be inappropriate to allow in the evidence of the police officer "as to finger similarity". Accordingly, he placed "no reliance on any similarity that may or may not exist" either to support a finding that the hand was that of the appellant or of someone else.

[13] The assessment of what the photographs showed was a question of fact for the trial judge. It was open to him to find that the evidence was not sufficiently cogent to support any conclusion on identity. There is no basis to interfere with his conclusion.

Disposition

[14] Accordingly, the appeal was dismissed.

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

"Doherty J.A."

"B. Zarnett J.A."