Court of Appeal for Ontario

Date: 2021-04-09 Docket: C67340

Judges: Lauwers, Huscroft and Harvison Young JJ.A.

Between: Her Majesty the Queen Respondent

And: Garrett Gauthier Appellant

Counsel: Megan Savard and Wesley Dutcher-Walls, for the appellant Molly Flanagan, for the respondent

Heard: September 22, 2020 by video conference

On appeal from the conviction entered on April 24, 2019, by Justice Wayne G. Rabley of the Ontario Court of Justice, and from the sentence imposed on August 28, 2019, with reasons reported at 2019 ONCJ 626.

Harvison Young J.A.:

[1] Garrett Gauthier was charged with accessing, possessing, making available, and making child pornography. He was convicted on all four counts. He appeals his convictions on several grounds, including that the trial judge misapprehended potentially exculpatory evidence related to Skype syncing. He also seeks leave to appeal his sentence.

A. Background

[2] The appellant came to the attention of police when they received a tip from the National Center for Missing & Exploited Children (NCMEC), stating that an image of child pornography had been uploaded to Skype from his IP address by an account called “dave.j.dunham” on January 30, 2017. The police traced the IP address to Mr. Gauthier’s home. They searched the home and seized Mr. Gauthier’s phone and laptop. They found 18 images on his laptop and 121 images and 3 videos on his phone. The police also found records of graphic Skype chats which formed the basis of the making child pornography charge. There was no dispute that the materials, including the chat messages, were child pornography. The issue at trial was identity: did the Crown prove that the appellant put the material on his devices?

[3] The case against the appellant was circumstantial. The appellant lives with his partner, and at least one other person had lived with them in the few years prior to the charges. Neither his computer nor his cell phone were password protected. The evidence for the Crown rested on a post-arrest interview with the appellant; the evidence of Det. Sandor Illes, an internet child exploitation investigator with the Waterloo Regional Police Service; and the evidence of Det. Allison Laing, a retired computer forensic examiner with the Waterloo Regional Police Service. Det. Laing was qualified as an expert, although, due to certain procedural irregularities discussed below, the basis for her qualification and the scope of her expertise was confused.

[4] At trial, the Crown sought to prove that only the appellant could have been responsible for the dave.j.dunham Skype activity and that the appellant possessed the contraband files on his devices. The defence attempted to raise a reasonable doubt by relying on evidence (a) that another person using a separate device could have been responsible for the evidence of illegal activity on the appellant's devices and (b) that the appellant was unlikely to have engaged in the illegal activity due to his presence in public places or proximity to other people at the time it occurred. To highlight the absence of exclusive opportunity, counsel pointed to the possibility of someone else's involvement but did not bring a formal third-party suspect application.

[5] The specific grounds of appeal raised by the appellant are based on two underlying and related arguments. The first is that as a case about the possession and creation of digital contraband, much of the evidence was complex and highly technical, describing subjects like the automatic sending and syncing of media files, the ability of a Skype user to sync data across devices, the probative value of a router’s MAC address, falsifiability, and more. Some of this evidence was inadmissible to begin with and had the effect of obscuring gaps in the Crown’s offer of proof.

[6] Second, the trial judge made a premature finding that the appellant had the exclusive opportunity to commit the offences, which drove his reasoning throughout the rest of his analysis. He was driven to this by his error in applying the third-party suspect test, which, as both parties agree, had not been argued. This, in the appellant’s view, effectively reversed the burden of proof. Having concluded at an early juncture that the appellant had an exclusive opportunity to commit the offences, the trial judge failed to fairly assess the appellant’s denial. Rather, the evidence about the appellant’s whereabouts and the absence of exclusive opportunity should have been part of the totality of the evidence the trial judge considered in his decision on whether the Crown’s offer of proof on each charge precluded any reasonable innocent explanation: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. Instead, he was left with no alternative but to reject or minimize evidence that was inconsistent with the inference of guilt he had already drawn.

[7] The respondent submits that the trial judge understood the Skype syncing evidence and properly rejected the argument that the syncing could have been remotely effected. The respondent also submits that, while the case for the Crown was circumstantial, the only real issue was whether the appellant was the user of the Skype “dave.j.dunham” account found on his cell phone and laptop, and the evidence supporting this was overwhelming. This evidence included the fact that dave.j.dunham’s chat records included a number of biographical details that were consistent with the appellant. In addition, “Dunham” was Mr. Gauthier’s mother’s maiden name. The evidence of the expert was properly admitted and within her scope and expertise. The trial judge did not reverse the burden of proof or misapprehend the evidence. Even if there were errors, the circumstantial case was so overwhelming that the convictions should stand.

[8] For the following reasons, I would allow the appeal and order a new trial with respect to the accessing, making available, and making counts, and an acquittal with respect to the possession count. I will address the grounds of appeal in turn.

B. The decision below

[9] After giving a brief overview of the facts, the trial judge discussed the legal principles involved. He directed himself on the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742. In addition, he stated that the defence had “submitted that an alternative suspect, a former roommate” could have committed the offences. As a result, he determined that the test for a third-party suspect in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, and R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, applied. He did not discuss the Villaroman case in his reasons.

[10] The trial judge summarized the defence as resting upon the following five “pillars”:

1. The appellant did not have exclusive opportunity to access, possess or distribute the child pornography on the two devices;
2. The emails that he provided as exhibits could only have been produced at his place of employment and therefore establish that he was at work and not at home on January 30;
3. The cell phone records provide evidence that he was in his office making calls and therefore not at home on January 30;
4. He was in public settings when the majority of the other downloads were made and therefore could not and would not have been using his cell phone or laptop during those times; and
5. He is a credible witness who should be believed or at least his evidence should raise a reasonable doubt.

[11] After rejecting each pillar of the defence, the trial judge concluded that the Crown had proven its case beyond a reasonable doubt:

Given the evidence presented by the Crown and in particular the testimony of Detectives Laing and Illes, I find that the Crown has proven beyond a reasonable doubt that Garrett Gauthier is one and the same person as david.j.dunham. Even though this is a circumstantial case, I cannot come to any other [rational] conclusion other than that Mr. Gauthier committed these offences.

C. Issues on appeal

[12] The appellant raises four arguments on his conviction appeal which I will consider in turn:

1. The trial judge relied on inadmissible evidence from the Crown’s expert about the functioning of Skype technology, or alternatively, failed to properly consider and limit the scope of her evidence;
2. The trial judge applied the wrong legal test and reversed the burden of proof;
3. The trial judge misapprehended the evidence of identity and opportunity; and
4. The trial judge’s verdict on the possession charge was unreasonable.

[13] On his appeal of his four-year concurrent sentences on the possessing and making available counts, the appellant submits that the trial judge committed errors in principle and that the resulting sentences were disproportionate, harsh, and excessive.

D. Analysis

(1) Inadmissible evidence on the functioning of Skype technology

[14] According to the appellant, the trial judge erred in admitting Det. Laing’s evidence as an expert witness, because she was insufficiently independent of the investigation and because key parts of her evidence exceeded the scope of her expertise. This second error was compounded by a failure to define and or limit the scope of her evidence to her expertise, which set the groundwork for further errors in the approach to and consideration of the evidence at trial.

[15] The respondent, on the other hand, takes the position that Det. Laing’s evidence was properly admitted and that the trial judge did not err in reversing his earlier ruling that she was not sufficiently independent of the investigation. There was no issue with the scope of Det. Laing’s evidence; rather it was well understood. She was permitted to give both expert opinion evidence and technical fact evidence based on her specialized knowledge in the area of “computer examination, data analysis, computer and cell phone forensic analysis and data retrieval.” Moreover, the Crown submits, her evidence was within the scope of this specialized knowledge and expertise. To the extent she provided evidence about the operation of Skype, this evidence was largely elicited by the defence and benefited the appellant.

[16] The trial began with a voir dire on the qualifications of the Crown’s expert, Det. Laing. The Crown initially sought to qualify her as an expert to “provide evidence relative to computer examination, data analysis, computer, and cell phone forensic analysis and data retrieval .” The defence challenged her qualifications on the basis that she was not sufficiently independent. During submissions, the Crown argued that Det. Laing’s testimony was essential to prove the mens rea of the charged offences.

[17] On the charges before the court, that meant that the Crown had to prove that Mr. Gauthier knowingly uploaded the files (making available), that he knew the files were on his devices (possessing), that he knowingly viewed or transmitted child pornography to himself (accessing), and that he personally wrote the chat messages (making).

[18] After hearing Det. Laing’s testimony on the voir dire and the parties’ argument, the trial judge issued a ruling disqualifying her because she was not sufficiently independent to testify as an expert. However, his ruling was based on a misapprehension of the facts surrounding her contact with Det. Illes and the investigative team. The trial judge based his independence conclusion on the finding that Det. Laing had discussed the investigation with Det. Illes and seen his work product and conclusion that the appellant was dave.j.dunham in May 2017 before she completed her initial forensic report. However, these discussions took place in May 2018, well after she had completed her initial forensic report.

[19] After this ruling, the Crown advanced an alternative argument for the admissibility of her testimony: that Det. Laing was a lay witness with specialized knowledge of forensic computer analysis.

[20] On the third day of trial, the trial judge reversed his ruling disqualifying Det. Laing due to his misapprehension of the facts. After this ruling, the Crown said it sought to elicit only specialized knowledge lay evidence, not expert opinion. The trial judge did not indicate whether he was permitting Det. Laing to give expert opinion or lay evidence based on special knowledge. Nor did he delineate the scope of the matters about which she could testify. In short, the basis upon which her evidence was admitted was never clarified.

[21] On appeal, the appellant argues both that Det. Laing should not have been permitted to testify at all either because she was not sufficiently independent or because, in any event, critical parts of her evidence (particularly in relation to Skype) were beyond the scope of her expertise and specialized knowledge.

(i) The principles

[22] An expert’s independence and impartiality goes to both admissibility and weight: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45. There is a two-step test to determining the admissibility of expert opinion evidence: White Burgess, at paras. 22-24. The first step involves an inquiry into whether the evidence meets the threshold requirements for admissibility: White Burgess, at para. 23; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The second step is a gatekeeping step, where the judge must balance “the potential risks and benefits of admitting the evidence”: White Burgess, at para. 24.

[23] An expert witness owes a duty to the court to be fair, objective and non-partisan: White Burgess, at para. 46. In order to meet the threshold requirement, the expert must be able and willing to carry out her duty to the court. The threshold requirement is “not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it”: White Burgess, at para. 49. Concerns about an expert’s independence and impartiality are also relevant at the gatekeeping stage: White Burgess, at para. 54.

[24] A trial judge’s gatekeeping role, however, does not end when the admissibility inquiry is over. It is critical for a trial judge to be alive to the continuing gatekeeper role throughout the trial and to be conscious of what is and is not evidence properly before the court: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 722, at para. 46. As part of the ongoing gatekeeper role, the trial judge must ensure that an expert’s testimony “stays within the proper bounds of his or her expertise”: Sekhon, at para. 47.

(ii) Application to the case

[25] I would reject the appellant’s argument that the trial judge should not have permitted Det. Laing to testify because she did not meet the independence requirement. The trial judge had made a simple error and once the error was brought to his attention, he stated that this was determinative of his opinion and reversed his ruling. He was entitled to do so. That decision was justifiable on the evidence and there is no reason to interfere with it on appeal.

[26] A problem, however, arose from the trial judge’s failure to delineate and to monitor the scope of her testimony, and particularly, her evidence on remote syncing and Skype as it emerged in the course of her testimony.

[27] In cross-examination, Det. Laing was asked technical questions about the operation of Skype. When asked about specific Skype settings on the appellant’s computer, she admitted that she was “not an expert in Skype.” Later in the cross-examination, she was asked about the nature of Skype syncing:

Q. The possibility of individual A being able to engage in Skype activity on his or her computer; individual B, who’s also synched to that same Skype account may not know what individual A is doing, if individual B’s computer is not on. And the witness had indicated that’s possible. [I]f my individual B a month later, two months later logs onto the computer and goes on to Windows and I’m going on the basis that the box is ticked that Skype automatically comes up, all the content of A’s Skype communications will be picked up on B’s computer, won’t it? A. So if you’re, if you’re asking me whether once B then logs on to their account and it’s connected to the server and it syncs, then yes.

[28] Defence counsel then asked, if individual A uploaded a photograph to Skype that synced onto individual B’s device, whether the image would have appeared to have been uploaded from individual B’s device as well:

Q. Okay. And let me ask you this, if, if an image had been sent, let’s stay with that scenario, A had uploaded an image from the Skype account to another location, would it appear that the image had been uploaded from both devices? Do we see uploading, because they’re both synced, would it appear that they’ve both been uploaded or uploaded from both devices? A. I don’t know.

[29] Det. Laing then articulated an untested theory about how the data would appear on each device:

A. I’m, I’m having – wouldn’t have tested this, but I would think there would be a file path where you’re acquiring this from each device that would help identify where it’s coming from, but I don’t know.

Det. Laing’s evidence on the possibility of remote syncing and the different file paths is discussed in more detail on the misapprehension of evidence issue.

[30] The Crown’s position is that Det. Laing was giving evidence within her expertise because she was giving evidence about the forensic analysis and data retrieval and not about Skype’s functioning. With respect, given the fact that the heart of the defence was that the appellant had not personally uploaded any contraband or operated the dave.j.dunham account during the material times, the issue of remote uploading and syncing across devices with the same Skype account was a live issue. As the Crown notes, the syncing function was key to the appellant’s defence. The very general basis for Det. Laing’s expertise – “computer examination, data analysis, computer and cell phone forensic analysis and data retrieval” – says nothing about social media platforms and, in particular, Skype. Det. Laing, by her own admission, was not an expert in Skype.

[31] I would allow this ground of appeal. While the trial judge did not err in declining to exclude Det. Laing’s evidence on the basis that she lacked independence, he erred in failing to limit the scope of her evidence in relation to Skype. In the circumstances of this case, I am unable to conclude that the case against the appellant was so overwhelming that conviction was inevitable in the absence of this evidence. Although that disposes of the appeal, I will address the other grounds because they were fully argued before us in the course of the appeal.

(2) Exclusive opportunity and burden of proof

[32] A core component of the defence at trial was that someone else was responsible for the illegal activity. This person had access to the appellant’s devices, which were not password protected, at some point in the past and logged on to the dave.j.dunham Skype account during this time. As a result, the photos and videos were synced onto the appellant’s devices via Skype. The implication of this defence is that the person responsible for the illegal upload on January 30 would not have had to be in the appellant’s home and on his laptop to effect the upload.

[33] After setting out the W.(D.) test early in his reasons, the trial judge went on to say that “an alternative suspect”, Mr. Collins, who had been a roommate of Mr. Gauthier and his partner, was a person who could have committed the offences. He stated that:

In order for a court to consider a ‘third party suspect’ there must be a sufficient connection between the third party and the crime. As stated by Karakatsanis J. in R. v. Grant, 2015 SCC 9 at para 24, “evidence that this third person had the motive, the means, or the propensity to commit the crime will often establish this sufficient connection.”

[34] The trial judge then stated that there must be an “air of reality” to trigger the consideration of whether or not the offences were committed by a third party, citing Grandinetti.

[35] It is common ground that the trial judge mistakenly referred to the Grandinetti test when the Villaroman analytical framework applies. The Crown, however, argues that this was of no moment because the trial judge actually applied the Villaroman test.

[36] The defence sought to raise a doubt by identifying reasonable inferences inconsistent with guilt and evidence capable of undermining the Crown’s claim of exclusive opportunity. In making the argument, the defence emphasized its position that there was a reasonable possibility that Mr. Collins or others were implicated in the illegal activity. The defence did not suggest that Mr. Collins had a motive or propensity to commit the crime. It was understood that counsel was not advancing a third-party suspect defence.

[37] On appeal, the appellant argues that applying the Grandinetti framework effectively reversed the burden of proof because applying the Grandinetti test limited, from the outset of the analysis, the range of potentially innocent explanations for the evidence of illegal activity on the appellant’s devices, while the Villaroman test precludes conviction on circumstantial evidence if there is another reasonable explanation inconsistent with guilt. This court has allowed appeals from conviction in cases where the trial judge has misunderstood the approach to circumstantial evidence and implicitly required the defendant to explain what happened. This is reinforced by the trial judge’s statement in the course of his explanation for rejecting the appellant’s evidence:

I appreciate that the Defence bears no onus to prove the innocence of Mr. Gauthier and that the onus of proof always rests with the Crown, but in my view, much of this evidence was problematic for the reasons I have set out and I find that it did not exonerate Mr. Gauthier as suggested by the Defence.

[38] The respondent submits that, when the reasons are read as a whole, the trial judge did apply the Villaroman framework. Deference is owed to the trial judge’s conclusion that there is no reasonable alternative inference to guilt. The trial judge’s reference to the third-party suspect test is of no moment and, if it was an error, it was a harmless one. Although he cited the Grandinetti “air of reality” test at the outset, the trial judge did not mention it again in his reasons. He considered all of the evidence, including the defence evidence, and eventually found that the only rational conclusion was that the appellant committed the offence. Although his use of the word “exonerate” is not perfect, when the reasons are read as a whole, it is clear that the trial judge properly applied the burden of proof. The trial judge concluded his analysis with the statement that he found that “the Crown has established beyond a reasonable doubt that neither Mr. Collins, Mr. Alexander nor a person unknown were operating the account david.j.dunham Skype account. By process of elimination, that leaves only Mr. Gauthier.”

(i) The principles

[39] A trial judge’s reasons are to be read as a whole and should not be microscopically examined or dissected: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11. That said, it is not enough to cite the correct rules if they are not given substantive effect: see e.g. R. v. Smith, 2020 ONCA 782, at para. 16.

[40] It is trite to say that the presumption of innocence and the duty of the Crown to prove guilt beyond a reasonable doubt form the golden thread of criminal law: R. v. Oakes, [1986] 1 S.C.R. 103, at p. 120. One consequence of the principle of proof beyond a reasonable doubt is that, in cases resting upon circumstantial evidence, the trier of fact should consider other reasonable inferences inconsistent with guilt: Villaroman, at para. 37. This is because of the danger that a trier of fact may fill in the blanks or bridge gaps in the evidence “to support the inference that the Crown invites it to draw”: Villaroman, at para. 26.

(ii) Application to the case

[41] The starting point of the trial judge’s reasons was the Grandinetti air of reality test, which effectively required the defence to show that a particular identifiable person (Mr. Collins) had a sufficiently strong connection to the offences to meet the air of reality test and justify serious consideration. This set the stage for the risk of an improper shifting of the burden of proof to the accused because, once the trial judge concluded that Mr. Collins could not have committed the offences, that left the appellant as the remaining possible perpetrator. The defence evidence was considered against this backdrop.

[42] In considering Mr. Gauthier’s defence that he did not have an exclusive opportunity to commit the offences, the trial judge commented that the complex criminal case could be seen very simply:

When one looks objectively at all of the evidence, logically there can be only three people who could possibly have accessed, possessed and distributed the child pornography on Mr. Gauthier’s cell phone and laptop. They are Khary Alexander, Stephen Collins and Garrett Gauthier.

[43] All parties agreed that Mr. Alexander, Mr. Gauthier’s partner, could not have committed the offences for reasons that are not pertinent to this appeal, except to say that the trial judge properly considered the evidence on the point and agreed. This left only Mr. Collins as a potential “third party”.

[44] Mr. Gauthier testified that Mr. Collins had unrestricted access to his laptop which was not password protected, and that his roommates used his laptop.

[45] The trial judge then turned to consider whether the person responsible for the child pornography found on the appellant’s devices was Mr. Collins or Mr. Gauthier. Mr. Gauthier’s evidence was that Mr. Collins had been a roommate between October 2014 until December 2016. The trial judge found that the dave.j.dunham account had been created in order to disguise the identity of the real user. Given that Dunham was Mr. Gauthier’s mother’s maiden name and few people would have known that, it was logical to conclude that Mr. Gauthier created it.

[46] Moreover, the account was created on May 25, 2012, over two years before Mr. Collins began living with Mr. Alexander and the appellant. The chat records in evidence for the dave.j.dunham account dated back to November 2, 2015. The appellant had a Skype account that was set up in his own name in April 2010. This account had last been logged on to on November 28, 2015. There was approximately one month of overlap in the use of the two accounts.

[47] By January 30, 2017, Mr. Collins had moved out and was apparently living in Newfoundland. The trial judge concluded that Mr. Collins could not have been at the appellant’s home at the time of the upload.

[48] The trial judge also rejected Mr. Gauthier’s evidence that on a number of occasions, which coincided with times that pictures and videos were created, downloaded, uploaded, or accessed on his devices, he was in public places or involved in doing other things such that he could not have engaged in these activities, observing that:

In every venue … we witness people on their phones. It is not uncommon for these individuals to be communicating with a variety of others and ‘reaching out’ or ‘staying connected.’ Therefore, to suggest that Mr. Gauthier may not have been briefly engaged on his phone because he was at a restaurant or a social get together does not recognize the way we now live.

[49] The trial judge found that had Mr. Collins been the one to set up the dave.j.dunham account, he would have discovered the Skype account that was still being used by Mr. Gauthier. Moreover, the trial judge expressed the view that it defied common sense to believe that Mr. Gauthier, an engineer, would not have noticed this earlier. That left Mr. Gauthier as the sole person who could have committed the offences.

[50] The trial judge’s approach reflects a failure to clearly apply Villaroman. His reference to the test from Grandinetti risked shifting the burden of proof. At the same time, the trial judge was well aware that the Crown had to prove its case beyond a reasonable doubt. He correctly articulated the three steps of W.(D.) and applied those steps. He rejected the appellant’s evidence, finding it inconsistent and self-serving. He stated, after dismissing the five “pillars” of the defence, that the evidence as a whole did not leave him with a reasonable doubt. There was, as the Crown argues, significant circumstantial evidence implicating the appellant. Nevertheless, setting out the Grandinetti third party suspect framework at the outset set the stage for an unfair assessment of the Villaroman test which appeared to place an unfair burden on the appellant. This concern was exacerbated by the trial judge’s comment that the evidence did not “exonerate” the appellant.

[51] The narrow question is whether, against such a backdrop, the failure to clearly apply Villaroman in these circumstances is a fatal error that requires a new trial. The respondent submits that given the circumstantial evidence in this case, this court should apply the curative proviso. This would not be appropriate in this case because the error was compounded by misapprehension of the evidence, to which I now turn.

(3) Misapprehension of the evidence

(i) The principles

[52] The principles governing the misapprehension of evidence are well known and articulated in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) and adopted in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

[53] In Morrissey, at p. 221, Doherty J.A. wrote that a misapprehension of evidence will result in a miscarriage of justice when the misapprehension relates to the substance of material parts of the evidence and those errors play an essential part in the reasoning process:

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[54] In Lohrer, at para. 2, Binnie J. affirmed Morrissey and stated that the misapprehension must go to the substance, rather than the detail, of the evidence and that the error must play an essential part in not just the narrative of the judgment but in the reasoning process resulting in a conviction.

(ii) Application to the case

[55] The trial judge committed one central misapprehension of the evidence before him. He assumed that the upload on January 30 had to have happened from the appellant’s home. Part of the basis for rejecting Mr. Collins as the possible operator of the account was that Mr. Collins had moved to Newfoundland, and the trial judge stated that it was absurd to suggest that Mr. Collins was the perpetrator:

In my view, it is beyond credulity to suggest that Mr. Collins returned from Newfoundland without telling Mr. Gauthier or Mr. Alexander and then entered into their home when they were not there and without their permission, to access the Skype account and download child pornography onto the laptop. That simply defies logic.

I should make a finding that Stephen Collins was not there that day. If he was not, he could not have been the individual who was using the dave.j.dunham account on earlier occasions. [Emphasis added.]

[56] Having rejected the possibility that there might have been other persons involved, this made the appellant’s version of events (such as his position that he was at work or in social situations at times when the dave.j.dunham account was chatting or when child pornography was accessed) presumptively suspect. The trial judge rejected the appellant’s evidence on this issue and found that it did not raise a reasonable doubt. The trial judge dismissed this possibility as far-fetched, noting that it was impossible to believe that a computer-savvy engineer such as the appellant would not have noticed that his Skype application had effectively been used by someone else for a few years.

[57] The appellant argues that the trial judge misapprehended the evidence on this point. The evidence elicited by both the Crown and the defence was that information on Skype could be synced across devices. The trial judge’s assumption that the January 30 upload originated from the appellant’s home disregarded this evidence. This caused him to overlook a reasonable innocent explanation for the inculpatory evidence on the appellant’s devices.

[58] The Crown argues that the trial judge’s finding that the upload happened at Mr. Gauthier’s home was supported by the evidence. For example, the Crown states that someone must have logged in to Skype on the appellant’s computer in the appellant’s home on January 30 for the images to have synced. In addition, the Crown argues that evidence related to IP and MAC addresses supports the trial judge’s finding.

[59] However, it is not clear from Det. Laing’s testimony that this evidence supports the inference that the January 30 upload happened in the appellant’s home. First, the Skype settings do not suggest that someone had to have been at the appellant’s computer on January 30. As Det. Laing testified, Skype technology syncs across devices. However, all that is required is that Skype be open and logged in. Nothing in Det. Laing’s testimony on the Skype settings, including the fact that Skype was not set to start upon start-up, suggests that someone had to open and log in to Skype on January 30. Second, Det. Laing’s evidence related to the IP address and MAC address associated with the laptop only suggests that the laptop was at the appellant’s home and connected to the internet on January 30. This evidence does not say anything about whether the January 30 upload originated from the appellant’s laptop or whether it originated from another device.

[60] The only evidence on the record that would support the conclusion that the upload happened from the appellant’s home was the NCMEC tip and Det. Laing’s evidence that there would be different file paths that would enable her to identify which device an upload originated from.

[61] The NCMEC tip cannot be relied on as evidence in this case. First, it was hearsay and there was no argument at trial that it should be admitted on the basis of any exception to the hearsay rule or the principled exception. Second, there was no evidence, aside from Det. Laing’s, about whether Skype or NCMEC would be able to differentiate between the original upload and a remotely synced download. This is not something that could form the basis of judicial notice, particularly during this period of rapidly developing and highly complex computer technology.

[62] Det. Laing’s evidence on this point was equivocal and confusing and given her admitted lack of expertise on Skype syncing as discussed above, inadmissible. She began her answer with the statement that she had not tested this theory, but that she thought that there would be different file paths that would allow her to identify where an upload originated. The fact that even Det. Laing was unsure about this subject underlines the extent to which this area is “beyond the ken” of fact finders. By disregarding (without discussing) the possibility of remote access by someone who had access to the appellant’s devices some time ago, it is not clear that the trial judge understood that this could have been a technical possibility.

(iii) Conclusion on misapprehension of evidence

[63] The trial judge made a number of findings that allowed him to conclude that the appellant was the operator of the dave.j.dunham Skype account. He found that the dave.j.dunham Skype account was created on the appellant’s laptop, and not on some other device. He drew this inference because the corresponding email address (dave.j.dunham@gmail.com), which was not used for any purpose other than to create the dave.j.dunham Skype account, was logged in on the appellant’s computer. He found it illogical to suggest that someone would have logged in to that email account on the appellant’s computer some time after the creation of the Skype account. He also found that there was powerful circumstantial evidence that the appellant was the operator of the dave.j.dunham Skype account, including that a number of biographical details that dave.j.dunham had discussed in Skype chats also described the appellant. It is possible that the sum total of this evidence would have enabled a trier of fact to draw the inference that the appellant was the operator of the dave.j.dunham Skype account.

[64] However, the trial judge’s unstated assumption that the January 30 upload originated in the appellant’s home was not supported by any admissible evidence at trial and was a misapprehension of the evidence. This assumption played an essential part in his train of reasoning. It was one of the reasons that the trial judge concluded that Mr. Collins could not have committed the offences. Having so concluded, the trial judge viewed the appellant’s potentially exculpatory evidence with a great deal of skepticism. As a result, there was a miscarriage of justice.

(4) Unreasonable verdict on the possession count

[65] The appellant argues that the conviction for possession was unreasonable on the evidence. All but two of the files containing child pornography were located in various cache folders on the appellant’s laptop and cell phone. According to the appellant, presence in cache folders is only enough to establish accessing, not possession.

[66] The final two files were found on the appellant’s laptop in a folder titled “My Skype’s received files”. This folder is not a cache folder. The appellant argues that Det. Laing’s testimony on this folder was confused and contradictory and that her evidence strayed outside of her expertise.

[67] The appellant argues that, because the trial judge never undertook an offence-by-offence analysis, it is unclear exactly what evidence he considered when he convicted on the possession charge. Absent admissible evidence from Det. Laing on the location of these two files, there is not enough evidence capable of supporting a conviction on possession.

[68] The Crown concedes that the evidence with regards to all but two of the files does not establish possession. However, the conviction was supported by the evidence because Det. Laing’s evidence was that the two remaining images had to have been purposefully downloaded. In addition, the Crown states that possession of the written pornography in Skype chat logs is sufficient to ground a conviction for possession of child pornography.

[69] A key question at trial was what, if anything, the user of Mr. Gauthier’s devices would have had to do for the illicit images to end up in the “My Skype’s received files” folder. If deliberate human action was required to “accept” a file transfer before it could end up in the folder, then Det. Laing’s evidence could support a finding that the appellant had deliberately taken possession of those images. However, Det. Laing’s testimony was confused on this point.

[70] When asked, Det. Laing first testified that a user would have to do something to accept a download before a file would appear in the folder:

A. In the, “My Skype’s received files,” this is a default location that Skype has for file transfers and download, it’s the download location. The user can, in the settings for Skype, change where those files would be downloaded and saved. This is still set to the default location as, “My Skype received files.” When the file is, file transfer is accepted by the user, this is the directory the file is saved to by the computer.

Q. All right, so when someone is in Skype, just describe for us what’s happening in Skype with the user that, that results in these two particular images winding up in that received files sub-folder.

A. The user has accepted a file transfer from another Skype user and it’s being downloaded into this location.

[71] Later, in cross-examination, Det. Laing denied that “accepted” had any meaning in relation to file transfers:

Q. You have indicated to us a number of different instances where what you can say is an image appears to have been accessed, that’s as opposed to being accepted.

A. What’s accepted mean in your….

Q. Well, accepted as in – well, I don’t know if the right term would be downloaded, saved, manners of that sort, I think I’d seen the term accepted with respect to exchange of some images. I may be using the word wrong.

[Crown counsel]: The file transfer you’re talking about?

Q. Or a file transfer. The term accepted, is that a term that, that has relevance in the world of file transfers from your standpoint?

A. Not, I’m not recognizing that, no.

[72] Although her initial testimony suggests that a Skype user would have knowledge of the contents of the Skype received files folder, by virtue of the fact that a received file would have to be “accepted”, her later statement that “accept” had no meaning raises questions about what user action was required for documents to end up in the Skype folder. That, in turn, raises questions about whether a user would have knowledge of the contents of the folder or whether files could end up in the folder automatically, without the knowledge of the computer user. Det. Laing’s evidence on the mechanics of the Skype folder is even more questionable given that she, by her own admission, was not an expert in Skype technology.

[73] Considered as a whole, her evidence does not clearly establish that the appellant deliberately “accepted” the files and therefore had the requisite knowledge to establish possession. Moreover, as I have already outlined, her evidence as to the functioning of Skype was inadmissible because she recognized that she did not know how it worked. Without this evidence, there was no evidence that the appellant knew that he had physical custody of the images. Knowledge of possession is an essential element of possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16; R. v. M.N., 2017 ONCA 434, at para. 37. There was no other evidence on the point.

[74] I reject the Crown’s argument that possession of the Skype chats would be enough to sustain the possession conviction. First, my conclusions on the other grounds of appeal apply to the Skype chats as well. Second, this theory of liability was not advanced at trial, nor was it specified on the information. The information stated that the possession charge was based on “digital images and videos”, not written material. I would not amend the information to include the written material in the possession count, as suggested by the Crown in oral argument. I am not persuaded that doing so at this stage would not occasion prejudice to the appellant.

(5) The curative proviso

[75] The respondent argues that the evidence against the appellant was overwhelming and that this court should apply the proviso.

[76] I disagree. While the circumstantial evidence may have appeared to be strong, it was not overwhelming. The heart of the defence was the argument that the contraband on the appellant’s devices could have been remotely transferred. Much of the expert evidence on that subject was inadmissible as it was beyond, on Det. Laing’s own admission, the scope of her expertise. Without Det. Laing’s evidence on key aspects of the technology, including whether the January 30 upload happened from the appellant’s home and how the files ended up on the devices (which was essential to the possession conviction), it cannot be said that the case against the appellant was so overwhelming that conviction was inevitable. Given the confusion around the third-party suspect Grandinetti test and the circumstantial evidence test in Villaroman, as well as the fact that, as set out above, the inadmissible evidence of Det. Laing played a significant role in the trial judge’s decision, I am unable to reach that conclusion. That said, it is possible that the circumstantial case could have given rise to a conviction in the absence of these errors. For that reason, I would allow the appeal and order a new trial with respect to the accessing, making available, and making child pornography counts. I would order that an acquittal be entered with respect to the possession count as there was no admissible evidence that the appellant knew that those images were on his devices.

E. Disposition

[77] For these reasons, I would allow the conviction appeal and order a new trial with respect to the accessing, making available, and making child pornography counts. I would order that an acquittal be entered with respect to the possession count. It is not necessary to consider the sentence appeal.

Released: April 9, 2021 “P.L.” “A. Harvison Young J.A.” “P. Lauwers J.A.” “Grant Huscroft J.A.”