Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20220706 Docket: C68345

Judges: Feldman, George and Copeland JJ.A.

Between: Her Majesty the Queen Respondent

And: Joshua Brown Appellant

Counsel: Andrew Burgess and Sherif Foda, for the appellant Sunil Mathai, for the respondent

Heard: June 27, 2022

On appeal from the convictions entered on August 12, 2019 and the sentence imposed on December 20, 2019 by Justice Louise L. Gauthier of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of accessing, possessing and making available child pornography. He was sentenced to three years in the penitentiary.

[2] The appellant appeals against conviction advancing two grounds: 1) that the verdict was unreasonable; and 2) that the trial judge’s reasons were insufficient. If we accept the appellant’s argument that the verdict was unreasonable, he asks that we enter acquittals. If we reject that argument, but find that the trial judge’s reasons were insufficient, he asks that we order a new trial. In the alternative, he seeks leave to appeal his sentence, arguing that the trial judge erred by 1) relying on a larger volume of child pornography than he was found to possess; 2) relying on aggravating factors that were not proven beyond a reasonable doubt; and 3) failing to give credit for the time spent subject to restrictive bail conditions (“Downes credit”). He asks that we reduce his sentence from three to two years.

[3] For the reasons that follow, we dismiss the conviction appeal. We grant leave to appeal sentence and dismiss the sentence appeal.

Background Facts

[4] On December 12, 2016, Detective Constable Kerr of the Greater Sudbury Police Service – using a software program known as “Torrential Downpour” – discovered that a computer at the appellant’s IP address was accessing child pornography. He determined that child pornography had been downloaded from the computer in question on several dates from September 21, 2016 to October 11, 2016. He downloaded over 500 files identified as child pornography from the appellant’s IP address.

[5] A search warrant was applied for and obtained, and was executed at the appellant’s home on December 21, 2016. A computer was seized from the master bedroom. At the time of seizure, a web browser was open under the username “Clark” which was playing an episode of the TV show, The Simpsons. Another officer, Constable Bignucolo, conducted a forensic examination of the seized computer. He extracted images and videos, which were subsequently categorized. Of the 2,517 files that were categorized as child pornography, Constable Bignucolo determined that all had been deleted at the time the computer was seized. He could not determine when those files had been created, downloaded, or deleted. As such, the findings of guilt were in relation to only the 500 files that the Crown could establish were undeleted as of the fall of 2016, pursuant to Det. Constable Kerr’s evidence. The files contained both images and videos and, for the most part, involved children 10 years old and younger. Many of the files were characterized as “severe”, meaning they depicted sexual violence against children. Some showed children exposing and touching their genitals or performing sex acts on themselves. Some showed sex acts between adults and children, and between children.

Defence Theory

[6] The appellant and his partner, Jessica, each gave statements to the police and testified at trial. Jessica was called by the Crown. They both denied knowing anything about the child pornography files. They each testified that during the relevant time they were never apart, and therefore would have known if the other had been or was accessing child pornography. While they gave a different account in their police statements, both testified at trial that the computer had not been moved to the master bedroom until December 2016. They suggested that either Jessica’s 12-year-old son, or her ex-partner, could have accessed the files, or that it was downloaded, unbeknownst to them, through a virus or malware.

Crown Theory

[7] The Crown’s position was that the appellant and Jessica were the only consistent and regular users of the computer, which was in their shared bedroom. The Crown argued that the evidence established that this computer was moved into that room in either August or September 2016 and that the children were not at the home when the files were downloaded. Further, according to the appellant himself, he knew about the existence of and how to use the file sharing software that downloaded the images. The appellant had also accessed music and watched TV shows on the device, and the nature of the files was readily accessible and obvious as they were on the desktop, in plain view, with graphic titles.

Decision Below

[8] The trial judge found that the appellant was incredible and unreliable. She rejected the testimony of the appellant that he and Jessica were “never” apart from each other in the fall of 2016, and rejected Jessica’s trial testimony that she moved the computer to the master bedroom in December 2016. She held that, in respect of the appellant, the essential elements of possessing, accessing and making child pornography available were made out. She concluded that the appellant either alone, or together with Jessica, possessed the computer in question, and controlled what was done on it, at the relevant time. She relied on the manner in which the files were stored, the explicit file names, and the fact that files had been downloaded and deleted before the search was conducted. She concluded that forensic evidence demonstrated that the user “Clark”, who accessed the music the appellant listened to and The Simpsons, which he watched, had opened and viewed the images and videos identified as child pornography in the order listed in the Recent Downloads folder on the computer. She also concluded that the appellant knew that his participation in the file sharing software would allow others to access the files. Lastly, the trial judge rejected the appellant’s argument that Jessica’s 12-year-old son, or her ex-partner, could have accessed and downloaded the files, and his argument that a virus was responsible, holding that these were not reasonable inferences available on the evidence.

[9] In imposing the 3-year-sentence, the trial judge considered, as aggravating factors, the size of the collection, accepting the Crown’s submission that it had proved upwards of 2,500 files; the nature of the collection; and the fact that the appellant had not, in her view, demonstrated any insight into what he had done. She also considered the mitigating factors, including the appellant’s youth, lack of criminal record, and mental health issues. She declined to grant any credit for the time the appellant was subject to bail conditions. Finally, she stayed the count of accessing child pornography, pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.

Analysis

[10] Where, as here, the Crown’s case depends exclusively or largely on circumstantial evidence, the inference of guilt must be the only reasonable inference to be drawn from the evidence or lack of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 36. To satisfy its burden, the Crown must negative all reasonable possibilities consistent with innocence, but not every possible conjecture: Villaroman, at para. 37. When the verdict is challenged as unreasonable, the question on appeal is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence: Villaroman, at para. 55.

[11] The appellant submits that the trial judge was required to address the possibility that Jessica alone committed the offences. This argument must fail for two reasons. First, Jessica’s evidence – which was that she did not download, access, or share child pornography – was not challenged by the appellant. And second, the appellant’s trial counsel did not argue that this was a reasonable inference available on the evidence. While there was no formal admission by the appellant that Jessica was not responsible, it is entirely understandable that the trial judge and Crown would have understood that the appellant accepted Jessica’s evidence on this point, given the appellant did not challenge it: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 79, leave to appeal refused, [2016] S.C.C.A. No. 203. In other words, the appellant made a tactical decision to not raise the inference he now seeks to advance on appeal. This tactical decision was to, in effect, concede that it was not an available inference at trial.

[12] Further, the trial judge’s finding that it was the appellant who possessed, accessed, and made available child pornography was reasonable. She relied on several pieces of evidence in arriving at this conclusion, including that the appellant was one of only two people who had possession of the computer and control over activities on it at the relevant time; the manner in which the files were stored and their explicit titles; Officer Kerr’s evidence that on seven occasions the police software downloaded over 500 files depicting child pornography; and the fact that some of the downloaded files had been opened and viewed by the user “Clark”, who accessed the music the appellant listened to, and The Simpsons, which he watched, in the order they were listed in the Recent Documents folder. Based on the evidence accepted by the trial judge, the appellant was the only person with access to that computer who could have downloaded the child pornography.

[13] The verdict was not unreasonable, and the trial judge’s reasons were sufficient. We, therefore, reject these grounds of appeal.

[14] With respect to the sentence appeal, we accept that the trial judge erroneously considered that there were 2,500 files. Apart from the 500 files identified by Det. Constable Kerr and captured in the indictment, for which the Crown sought convictions, it could not be determined when the files were created, downloaded or deleted. However, as 500 files is also a very large quantity warranting a significant sentence, this error had no impact on the fitness of the sentence imposed: see R. v. Walker, 2021 ONCA 863, and R. v. Carlos, 2016 ONCA 920. Further, the trial judge appropriately considered the content of the child pornography as an aggravating factor. Accordingly, we see no reason to interfere.

[15] Finally, at the hearing of the appeal, counsel advised that the appellant was no longer pursuing the argument that the trial judge erred by failing to give Downes credit for the time spent subject to bail conditions.