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:

Criminal Code Provisions

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-25

Docket: C64326

Judges: Simmons, Huscroft and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Mathieu Leblanc Appellant

Counsel: Ronald Guertin, for the appellant Jeremy Tatum, for the respondent

Heard and released orally: November 22, 2019

On appeal from: the conviction entered on January 31, 2017 by Justice Kevin B. Phillips of the Superior Court of Justice.

Reasons for Decision

[1] Mr. Leblanc appeals from his conviction for possession of child pornography. The appellant was an employee of a department of the Federal government. He was accused of acting inappropriately by a co-worker which led to an internal investigation. As part of that investigation, the appellant's work computer was seized.

[2] An initial review of the appellant's computer found an image that an internal investigator believed might be child pornography. The investigator alerted the police. The police attended and took possession of the appellant's computer.

[3] Unbeknownst to the police, as part of the internal investigation, a mirror copy of the hard drive of the appellant's computer had been made and kept by the internal investigators. A further review of that mirror copy by the internal investigators revealed a large quantity of child pornography. The police were alerted again.

[4] The police attended at the work site and looked at the mirror copy. The police, by this point, did not have a search warrant. A search warrant was subsequently obtained and charges were laid against the appellant.

[5] On this appeal, two issues are raised. One is a challenge to the trial judge's rejection of the appellant's application to have the child pornography evidence excluded because the police review of the mirror copy of the hard drive without a warrant constituted a breach of the appellant's s. 8 Charter rights against unreasonable search and seizure. The other is a challenge to the trial judge's conclusion that the Crown had proved, beyond a reasonable doubt, that the appellant had possession of the child pornography.

[6] On the issue of the search warrant, the trial judge gave careful and detailed reasons in which, while he found a s. 8 breach, he declined to exclude the evidence under s. 24(2). We cannot find any error in his conclusion. We note that, as a general proposition, a trial judge's s. 24(2) analysis is entitled to significant deference: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. We also note that the appellant did not directly challenge the subsequently obtained search warrant that the trial judge found was properly issued even with the impugned officer's evidence excised.

[7] On the issue of possession, the trial judge gave thorough reasons for his conclusion that the only reasonable inference to be drawn from the facts as a whole is that the appellant had possession of the child pornography. The trial judge noted the salient facts that (i) the child pornography was found on the appellant's workplace computer; (ii) the appellant had exclusive control over the computer through his unique user name and password; (iii) the child pornography had been transferred to the computer from an external device; (iv) expert evidence established that the folder in which the child pornography had been located had been created by the appellant; (v) certain subfolders within the folder clearly indicated the nature of the contents of the folders, that is, child pornography; and (vi) the appellant had attempted to delete the folder after learning he was the subject of a complaint and before his computer was seized. On this last point, we reject the appellant's submission that the trial judge misused the admission made at trial.

[8] In our view, it was open to the trial judge to draw the reasonable inference, from these facts, that the appellant was aware of the content of the folder on his computer and thus had possession of the child pornography as possession is defined in s. 4 of the Criminal Code. We cannot find any error in his conclusion in this regard.

[9] The appeal is dismissed.

"Janet Simmons J.A."

"Grant Huscroft J.A."

"I.V.B Nordheimer J.A."