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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

COURT OF APPEAL FOR ONTARIO

DATE: 20240112 DOCKET: C70954

Paciocco, George and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nicholas Beauvais Appellant

Counsel: Nicholas Beauvais, acting in person Ariel Herscovitch, duty counsel Erica Whitford, for the respondent

Heard: December 6, 2023

On appeal from the conviction entered on November 17, 2021 by Justice John A. Desotti of the Superior Court of Justice.

REASONS FOR DECISION

A. OVERVIEW

[1] The appellant was convicted of possessing child pornography, accessing child pornography, and making child pornography available. He was sentenced to 3 years imprisonment.

[2] The appellant appeals his convictions. Assisted by duty counsel, he raises one ground of appeal: the trial judge erred by failing to properly consider alternative inferences other than his guilt. The appellant argues that these alternative inferences were not “mere speculation”, but rather were reasonable possibilities as defined in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The appellant seeks a new trial.

B. The Trial

[3] Constable Kwon of the Chatham-Kent Police Service, using a special software program to track child pornography, discovered that several gigabytes of material had been downloaded to a subscriber identified as Christopher Hallissey at an address in Chatham. Mr. Hallissey lived at this residence along with the appellant, the appellant’s girlfriend Trish Evans, and Cameron Quick. A fifth person, Leo Leblanc, also lived there during the period when the child pornography was downloaded.

[4] A search warrant was executed at the residence. Electronic devices were located and turned over to Constable Fasullo for analysis. Constable Fasullo analyzed an Acer laptop computer (the “laptop”) with 143 videos, and a Toshiba hard drive with 1 video and 271 images.

[5] At trial it was agreed that:

i) all of these videos and images met the definition of child pornography; ii) Constable Fasullo was a qualified computer analyst; iii) the appellant’s nickname is “Moose” (which he used in both his email address and Facebook account); iv) the downloaded child pornography originated from a file-sharing program called uTorrent; v) the laptop was password protected; vi) the laptop was typically left in the living room on a table that was accessible to anyone who lived at, or visited, the residence; vii) both Mr. Hallissey and Mr. Leblanc would use the laptop but only when permission was granted by the appellant; and viii) Mr. Leblanc would normally use the laptop when “gaming” (playing video games) with the appellant.

[6] In his statement to the police, and during his testimony at trial, the appellant acknowledged that he was aware of and had used the uTorrent file-sharing program. Both Constable Fasullo and Constable Kwon testified that to download child pornography from the uTorrent program to a computer, one would have to conduct an internet search specifically for child pornography. They further testified that all of the folders and directories where child pornography was located had “Moose” as a username, and that the child pornography on the laptop did not originate from an SD card.

[7] During Constable Fasullo’s analysis of the laptop he discovered a virus, accompanied by a warning that it was “dangerous and executes commands from an attacker”. Beyond this warning, Constable Fasullo did not know, and the Crown did not tender any other evidence about, the nature of the virus or what it was capable of doing, including whether it allowed other people to download materials to the laptop remotely. The appellant’s trial counsel argued that it was possible that the virus was responsible for the child pornography being downloaded.

[8] Constable Fasullo further testified that he located child pornography in the laptop’s recycle bin, which was still accessible.

[9] The appellant denied downloading child pornography. He pointed the finger at Mr. Leblanc, explaining that after Mr. Leblanc had accidentally placed his own phone in a washing machine, and out of fear that he would lose photographs of his girlfriend and child, he asked the appellant to download the contents of the phone’s SD card onto his laptop. The appellant testified that he did so, but because the pictures from the SD card were encrypted, he could not view them on his laptop. He subsequently downloaded the SD card onto Trish’s phone, where he viewed images depicting child pornography. The appellant said that, because of what he found, he took steps to evict Mr. Leblanc from the residence and that he flushed the SD card down the toilet.

[10] Mr. Leblanc testified. He denied doing what the appellant had alleged. He denied ever using the laptop to access or download child pornography, testifying that 1) he only used the laptop “[a]bout two or three times”, 2) he needed the appellant’s permission to use the laptop, 3) the appellant had to enter the password for him because the password was “special” or unique to the appellant, and 4) he had observed the appellant similarly entering the password for Trish when she wanted to use the laptop.

[11] As mentioned, the Toshiba hard drive – which, when found, was connected to the laptop – also contained child pornography. While the laptop was the appellant’s, Mr. Hallissey owned the hard drive. Mr. Hallissey testified. Although anime pornography was found on his PlayStation (that he admitted downloading), Mr. Hallissey denied downloading any other child pornography onto either the laptop or the hard drive.

[12] The Crown’s position at trial was that the only reasonable inference to draw from the evidence was that the appellant was responsible for the child pornography found on both the laptop and the hard drive.

[13] The trial judge rejected the appellant’s evidence that the child pornography arrived on the laptop from Mr. Leblanc’s SD card, and accepted Mr. Leblanc’s testimony that he never had a SD card with child pornography. The trial judge also found the suggestion that a virus could have downloaded the videos and images “pure speculation and not based on any evidence”. The trial judge found the appellant guilty of possessing and accessing child pornography. He concluded further that because the appellant (under the username “Moose”) downloaded child pornography using uTorrent, which could then be accessed by any other uTorrent user, he was guilty of making child pornography available.

C. Positions of the Parties

[14] The appellant argues that the alternative inferences to his guilt were not “mere speculation”, but rather were reasonable possibilities as defined in Villaroman. Duty counsel noted that three distinct alternative inferences were put to the trial judge:

i) the child pornography was downloaded onto the laptop from Mr. Leblanc’s SD card; ii) the child pornography was downloaded by one of the four people the appellant lived with at the time, all of whom had access to the laptop; and iii) the virus on the laptop allowed a third-party attacker to take control of the computer and download the images and videos.

[15] Duty counsel acknowledges that it was open to the trial judge to reject the first proposed alternative inference – that the child pornography was downloaded from Mr. Leblanc’s SD card – but maintains that the trial judge did not sufficiently consider, or adequately explain why he rejected, either the second or the third possibility.

[16] The Crown submits that these alternative inferences were not reasonable possibilities and that the trial judge properly rejected them.

D. Analysis

Possibility That Other Individuals in the Residence Downloaded the Child Pornography

[17] While it was open to the trial judge to reject the appellant’s evidence about Mr. Leblanc’s SD card, he failed to assess whether Mr. Leblanc (or anyone else in the home) could have downloaded the materials otherwise. For instance, the appellant testified that every resident had access to his laptop; that the laptop’s password was his birthday and that “[e]veryone knew it”; and that “[i]t could have been anyone but Cameron Quick”, none of which the trial judge ever expressly accepted nor rejected.

[18] It is well-established that a trier of fact can reject some, none, or all of a witness’s testimony: see e.g. R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10; R. v. Powell, 2021 ONCA 271, at para. 40. Accordingly, the trial judge’s rejection of the appellant’s evidence that the child pornography was downloaded from Mr. Leblanc’s SD card cannot be read as an implied rejection of his testimony in its entirety or as a rejection of the specific points noted above. Furthermore, at no point did the trial judge affirmatively accept Mr. Leblanc’s evidence that he and Trish had to have the password entered by the appellant when they wanted to use the laptop, which the appellant’s testimony contradicted. This critical conflict in the evidence was never resolved by the trial judge.

[19] In light of the evidence and the parties’ submissions, it was essential that the trial judge grapple with the possibility that someone other than the appellant downloaded the child pornography. However, other than to address the suggestion that the images and videos originated from Mr. Leblanc’s SD card, the trial judge failed to do so.

[20] The trial judge attached significance to the evidence that child pornography was found in the computer’s recycling bin, stating in his analysis on the possession and accessing counts that:

Constable Fasullo indicated that even the recycle bin contained child pornography and would still be accessible. The obvious inference with respect to the location of this child pornography is that … placing material in the recycle bin would require an operating mind and action, that is knowledge and control.

[21] In our view, while it was open to the trial judge to conclude that someone must have intentionally moved these files to the recycling bin, and to infer that this person would have known what they were, this evidence did not answer the central question in this case, which was the identity of the person who downloaded or otherwise had knowing possession of these files. If someone other than the appellant was responsible for the downloads, he or she might also have been the person who moved some of the files into the recycling bin. Given the evidence that the computer was accessible to, and used by others, evidence that files were in the recycling bin did not shed any light on the disputed question of whether the appellant was the person who put them there.

[22] We are also of the view that the trial judge attached undue weight to the presence of the username “Moose” on all of the laptop’s folders and directories that contained child pornography. The trial judge, who called this the “most significant” factor pointing to the appellant’s guilt, failed to recognize that it was uncontested that “Moose” was the only user profile on the laptop. As a result, any files that were downloaded to the laptop would necessarily be saved in directories under that username, whether the downloads were done by the appellant or by anyone else who had access to the laptop.

Possibility that the Computer Virus Allowed a Third-Party Attacker to Download the Child Pornography

[23] Constable Fasullo testified that the scan he conducted on the laptop exposed a virus which could “[execute] commands from an attacker”. Although Constable Fasullo did not testify that the virus in fact allowed a third-party attacker to download child pornography onto the laptop, his evidence was nevertheless sufficient to move this inference from the realm of pure speculation to that of a reasonable possibility. As the Supreme Court cautioned in Villaroman, at para. 35, “[r]equiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts”. It was therefore not incumbent on the appellant to adduce further evidence to positively support this inference. The burden instead rested with the Crown to negate it.

[24] Had Constable Fasullo simply testified to the presence of a virus, and nothing more, the Crown might not have had any further work to do, but his description of the virus in this case as permitting the attacker to execute commands provided an air of reality to the suggestion that someone may have used the appellant’s computer remotely to access and download child pornography. This inference was not speculative but grounded in the expert’s description of the possibility that this virus could provide an external user with the power to execute commands on the computer. This evidence placed a tactical obligation on the Crown to present some evidence to negate the possibility that a third-party attacker was responsible for downloading the child pornography, failing which this evidence could potentially create a reasonable doubt.

[25] The Crown disputes the reasonableness of this possibility based on other evidence. Specifically, the Crown points out that instead of there being just a few images and videos, there were 143 videos – some as long as an hour in duration – on the laptop, along with 271 images and 1 video on the Toshiba hard drive. According to the Crown, each of the videos and images would had to have been searched for using specific search keywords on uTorrent and would have collectively taken a considerable amount of time to download. In the Crown’s view, it strains credulity to attribute these actions to a third-party attacker. The Crown submits that the appellant must have had knowledge of the child pornography on his laptop because a) the pornographic material was downloaded using uTorrent, b) the appellant was a regular user of uTorrent, and c) a quick glance at the folder titles made it clear that they contained child pornography.

[26] The Crown submits further that because some of the child pornography was in the recycle bin, someone had to have been making the conscious choice to delete some pornographic files and to keep others, demonstrating both knowledge of its presence and control. As such, it is not a reasonable possibility that the appellant had no knowledge of the child pornography nor that the “operating mind” behind the deletion of some of the files, but not others, was a third-party attacker.

[27] In our view, these arguments do not assist the Crown, because the trial judge did not rely on either of these bodies of evidence to eliminate the possibility that the files could have been downloaded by a third party attacker. Rather, he held that he did not have to consider this possibility, because it was “pure speculation”, which it was not.

[28] As duty counsel made clear, the issue being raised before us on appeal is not whether the verdicts against the appellant were unreasonable. We accordingly need not decide whether a reasonable trier of fact, properly instructed, could have relied on the evidence of the appellant’s use of uTorrent, and the presence of child pornographic files in the recycling bin, to rule out the possibility that the files were downloaded by a remote attacker. That is not what the trial judge did, and we cannot bridge the gap in his reasons and assume that he would necessarily have drawn that conclusion from this evidence if he had properly considered the issue.

[29] The issue before us on appeal is whether the trial judge adequately assessed 1) the appellant’s evidence about the password being known to everyone, and about who had access to the computer, which left open the possibility that another resident may have downloaded the child pornography, and 2) the evidence that the virus could “[execute] commands from an attacker”, which moved the defence’s theory from the realm of mere speculation to that of a reasonable possibility. We are satisfied that the trial judge erred by failing to adequately consider either of these alternative inferences.

Conclusion

[30] For these reasons the appeal is allowed, the convictions are set aside, and a new trial is ordered.

“David M. Paciocco J.A.”

“J. George J.A.”

“J. Dawe J.A.”