WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230925

DOCKET: C70807

Favreau, Copeland, and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

Christopher Oake Appellant

Counsel: James Harbic, for the appellant Baaba Forson, for the respondent

Heard: September 14, 2023

On appeal from the conviction entered by Justice Ronald M. Laliberté of the Superior Court of Justice on February 16, 2022.

Reasons for Decision

[1] The appellant was convicted of two counts of possession of child pornography, on the basis that he had downloaded 7 images and 34 videos of child pornography into two separate folders on his cellphone. [1]

[2] The appellant did not testify at trial. The main theory advanced by the defence was that it was a tenant living at the appellant’s residence, Vernon Brock (“Brock”), who had put the child pornography on the appellant’s cellphone. This theory was predominantly based on the evidence of Celina Assaf (“Assaf”), the appellant’s girlfriend at the time of his arrest. Assaf was a witness for the Crown and testified that Brock did not have his own cellphone and repeatedly borrowed the appellant’s cellphone for extended periods of time. She testified that she suspected that Brock might have been using the appellant’s cellphone to view child pornography.

[3] The trial judge found that Assaf’s evidence on this point was not credible for several reasons, including the fact that she had not reported her alleged suspicions about Brock to the Crown or the police prior to the trial. Based on the totality of the evidence, the trial judge found that the Crown had proven beyond a reasonable doubt that the appellant was in possession of the child pornography and was therefore guilty.

[4] The appellant appeals this conviction on the following four grounds:

(i) the trial judge erred in finding that Assaf’s evidence regarding Brock’s use of the appellant’s cellphone was not credible;

(ii) the trial judge reversed the onus of proof in assessing circumstantial evidence;

(iii) the trial judge misinterpreted the evidence of a Crown expert on the possibility that Brock could have put the child pornography on the appellant’s cellphone; and

(iv) the trial judge erred in failing to give himself a Vetrovec warning [2] with respect to Brock’s evidence, and for accepting his evidence despite the fact that Brock had lied in his evidence in chief.

[5] At the hearing of the appeal, after hearing the appellant’s submissions, we did not call on the Crown, and dismissed the appeal with reasons to follow. As we explain below, the grounds of appeal advanced by the appellant essentially invite this court to substitute our own findings on credibility for those of the trial judge. Not only is that not our role, but we see no errors in the trial judge’s credibility assessments, which were clearly explained and were amply supported in the record.

A. Background

[6] The investigation in this case arose when police learned that an image of child pornography had been sent from an email account belonging to the appellant. A search warrant was executed at the appellant’s residence on June 18, 2019, for child pornography related offences.

[7] Although the appellant was not at the residence when the search warrant was executed, he was subsequently identified by police as a passenger in a commercial vehicle. When police stopped and approached this vehicle in order to arrest the appellant, they observed the appellant with a cellphone on his lap. When the officer asked the appellant to step out of the vehicle, he observed the appellant grabbing the cellphone and dropping it between the seat and the centre console area of the vehicle. After arresting the appellant, the officer went back to the vehicle, located the cellphone in the centre console area, and seized it. As noted above, extensive child pornography images and videos were located on the seized cellphone.

[8] The appellant was not the only target of the search warrant executed at his residence on June 18, 2019. The other target was Brock, who was living in the same residence, and who had allegedly shared child pornography with an undercover police officer. Brock was arrested and later admitted to accessing child pornography. He pled guilty and in January 2021 was sentenced to two years imprisonment with 12 months probation to follow.

B. Reasons of the Trial Judge

[9] There was no dispute that the seized cellphone belonged to the appellant and that there were extensive images and videos containing child pornography located on this phone. The only issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant had the required knowledge of the presence of the offending images and videos so as to be in possession of them.

[10] The Crown’s case on that issue was circumstantial. The trial judge correctly recognized that, consistent with the Supreme Court’s holding in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37, he could not find that the accused had knowledge of the child pornography unless that was the only reasonable inference available from the evidence as a whole.

[11] The trial judge noted that there was strong evidence indicating that the appellant must have been aware of the child pornography on his cellphone. This included the fact that the appellant had attempted to hide the cellphone at the time of his arrest, as well as the fact that the software applications that had been used to store the child pornography on the cellphone were associated only with the appellant.

[12] When making the finding regarding the appellant’s association with the child pornography, the trial judge considered in detail the evidence of Assaf, who had claimed that Brock had used the appellant’s cellphone frequently and for extended periods of time. The defence theory was that Brock, rather than the appellant, might have downloaded child pornography onto the appellant’s phone.

[13] The trial judge found that Assaf’s evidence was not credible and rejected it for a variety of reasons, including: contrary to Assaf’s evidence, Brock owned his own cellphone; none of the other residents ever saw Brock using the appellant’s cellphone; Brock himself also denied using it; and Assaf failed to disclose her suspicions regarding Brock’s alleged use of the appellant’s cellphone during an interview with the Crown and police that took place just one week prior to the trial, in anticipation of the Crown calling her as a witness at trial, despite the fact that she was specifically questioned about the relationship between Brock and the appellant.

[14] Having rejected Assaf’s evidence, the trial judge found that the only logical and reasonable inference available on the evidence was that the appellant had downloaded the child pornography on his cellphone. He therefore found him guilty of the offences charged.

C. Governing Principles

[15] Trial judges’ appreciation of the evidence and their credibility and reliability findings attract significant deference from this court. Absent palpable and overriding error, there is no basis for appellate intervention with the trial judge’s rulings on these issues: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. Appellate deference is particularly appropriate in relation to a trial judge’s resolution of credibility controversies. Assessment of credibility is the daily fare of trial judges, who are in a unique position to see and hear witnesses and, thus, determine the credibility and reliability of their evidence: R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66.

D. No Error in Finding That Assaf’s Evidence Was Not Credible

[16] The appellant argues that the trial judge erred in drawing an adverse inference from the fact that Assaf had failed to report her suspicions about Brock’s use of the appellant’s cellphone to the Crown and the police. The appellant points out that Assaf had reported her concerns to the appellant’s counsel two years prior to trial. He argues that the trial judge was therefore mistaken in rejecting her evidence because of Assaf’s failure to disclose her suspicions to the Crown and the police.

[17] We do not agree, for two reasons.

[18] First, the trial judge was well aware of the fact that Assaf had disclosed her concerns to defence counsel. Nevertheless, he found that this could not account for her failure to raise these concerns with the Crown and the police when she met with them one week prior to trial. In the trial judge’s view, her failure to disclose relevant information regarding Brock’s alleged use of the appellant’s cellphone rendered her evidence less reliable and trustworthy. He rejected her explanation that she did not disclose information about Brock using the appellant’s phone in the pre-trial interview because she was never asked and it never crossed her mind as “mak[ing] no sense”. These findings were open to him on the evidence.

[19] Second, Assaf’s failure to raise her concerns regarding Brock with the Crown and the police was just one of the reasons that led the trial judge to reject her evidence. The trial judge also explained in some detail how Assaf’s evidence regarding Brock’s alleged use of the appellant’s cellphone was contradicted by the evidence of other witnesses, as well as by certain uncontested evidence, such as Brock owning his own cellphone.

[20] The trial judge’s finding regarding Assaf’s credibility is entitled to deference and, in any event, we see no error in the judge’s analysis and finding. We therefore dismiss this ground of appeal.

E. The Trial Judge Did Not Reverse the Onus of Proof in Assessing Circumstantial Evidence

[21] Brock admitted to having viewed child pornography on his cellphone on at least one occasion but the police found no such material on his phone. The appellant maintains that there was thus no factual basis to conclude that Brock accessed child pornography on his own phone, giving rise to the possibility that Brock had used the appellant’s cellphone for this purpose. The appellant argues that by excluding this possibility, the trial judge improperly reversed the onus of proof away from the Crown and onto the defence.

[22] We find no such error on the part of the trial judge. The trial judge carefully considered the submissions of the appellant on this point but concluded that the possibility of Brock having used the appellant’s cellphone to view child pornography was entirely speculative. The trial judge provided a number of reasons in support of this finding, including the fact that since Brock had his own electronic devices, including a cellphone, it simply made no sense for Brock to have used the appellant’s cellphone to view child pornography. We see no error in the trial judge’s conclusion that, once he rejected the evidence of Assaf about Brock using the appellant’s phone as not credible or reliable, an inference that Brock was responsible for the child pornography on the appellant’s phone was speculative on the balance of the evidence (or lack of evidence).

[23] In our view, the trial judge properly applied the Villaroman test. His finding was that the only reasonable inference available on the evidence was that the appellant, rather than Brock, had accessed and saved the child pornography on the appellant’s cellphone. This finding was open to him on the evidence and is entitled to deference.

[24] We therefore dismiss this ground of appeal.

F. The trial judge did not misinterpret the expert evidence

[25] One of the Crown’s experts agreed in cross-examination that it was “possible” that Brock could have put child pornography in the appellant’s phone without the appellant’s knowledge. The appellant argues that this admission should have raised a reasonable doubt as to the appellant’s guilt.

[26] Once again, it was not necessary for the Crown to exclude possibilities that were merely theoretical or speculative. The fact that the Crown expert agreed that it was “possible” for Brock to have put child pornography on the appellant’s cellphone did not make that possibility realistic or plausible in the context of the whole of the evidence. In fact, the Crown expert’s examination of the cellphone strongly supported the conclusion that it was the appellant who had downloaded the child pornography onto his phone, given the manner in which the impugned images had been accessed as well as their location on the cellphone.

[27] This ground of appeal is therefore dismissed.

G. No Error in the treatment of Brock’s Evidence

[28] The appellant submits the trial judge should have given himself a Vetrovec warning before accepting the evidence of Brock, a witness with a long criminal record who had admitted to lying to the police. The appellant also suggests that Brock lied in his trial testimony when he claimed in examination-in-chief that he only accessed child pornography on his laptop, but agreed in re-examination that he also accessed child pornography on his own cellphone.

[29] The trial judge was alive to these concerns with Brock’s credibility, noting that he had pled guilty to similar charges and had served significant time in the penitentiary. He also noted Brock’s criminal record that was filed at trial as an exhibit. The trial judge was aware of the inconsistency in Brock’s evidence about what device or devices he used to access child pornography and was in a position to assess its impact, if any, on his credibility.

[30] We see no error in the manner in which the trial judge approached Brock’s evidence and dismiss this ground of appeal.

H. Disposition

[31] The appeal is dismissed.

“L. Favreau J.A.”

“J. Copeland J.A.”

“P.J. Monahan J.A.”

Notes

[1] There were additional images of child pornography on the cellphone, but these images had been automatically generated by the software on the device on unknown dates and were not readily accessible by the user at the time the cellphone was seized. The Crown did not argue that the appellant was in possession of those images at that time.

[2] In accordance with Vetrovec v. The Queen, [1982] 1 S.C.R. 811.