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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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

CITATION: R. v. Maillet, 2021 ONCA 73

DATE: 20210201

DOCKET: C67900

Fairburn A.C.J.O., Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Joseph Maillet

Appellant

Kenneth W. Golish, for the appellant

Andrew Cappell, for the respondent

Heard: January 28, 2021 by video conference

On appeal from the conviction entered on June 13, 2019 by Justice Renee M. Pomerance of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] The appellant appeals from his conviction for possession of child pornography.

[2] During the course of executing a search warrant at the home of Michael Hardstone, the appellant’s housemate, the police found a laptop computer in the appellant’s bedroom. The laptop was connected to a monitor, and when the Windows Explorer application was opened a folder was found containing over 3800 images of child pornography. The appellant admitted that the images were child pornography. The only issue at trial was whether the appellant knew the images were on the laptop.

[3] A computer found in Hardstone’s bedroom also contained child pornography. Hardstone pleaded guilty to possession of child pornography and testified for the Crown. He said that he purchased the appellant’s computer and gave it to him. He testified that he never used that computer and denied downloading child pornography onto it.

[4] The appellant argues that the jury’s verdict was unreasonable. He argues, in particular, that expert evidence was required in order to establish that the appellant had knowledge of and control over the child pornography on the computer found in his bedroom.

[5] We disagree.

[6] The case against the appellant was circumstantial. The trial judge properly and repeatedly instructed the jury that it must be satisfied that the appellant’s guilt was the only rational conclusion that could be drawn from the evidence in order to find the appellant guilty.

[7] The jury was entitled to accept Hardstone’s evidence that he was not responsible for the child pornography found on the computer in the appellant’s bedroom, despite the appellant’s submissions that he lacked credibility. The only other possible explanation – that the images were on the computer when Hardstone purchased it from the pawn shop and that the appellant never learned of it – was speculative. It was for the jury to determine whether there were other rational explanations for why the appellant may not have known that there was a huge stash of child pornography on his computer. In light of the factual record, including the appellant’s proven expertise in computers, it was open for the jury to conclude that there was no other rational conclusion to be drawn, other than that the appellant knew of the presence of the child pornography.

[8] Because it was open to the jury to find that the inference that the appellant knew the child pornography was on his laptop was the only reasonable inference available, it cannot be said that the jury’s verdict was unreasonable.

[9] We note that the appellant raised additional arguments that were not set out in his factum, including that the absence of a directed verdict application does not inform the issue involving the reasonableness of the verdict in this case because bringing such an application is up to the accused, not the accused’s lawyer. There is no merit to these arguments.

[10] The appeal is dismissed.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“Grant Huscroft J.A.”