Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240513 DOCKET: C69784

Judges: Zarnett, Coroza and Monahan JJ.A.

BETWEEN:

His Majesty the King Respondent

and

Jorge Berganza-Zaldana Appellant

Counsel: Stephen Whitzman, for the appellant Kevin Pitt, for the respondent

Heard and released orally: May 10, 2024

On appeal from the conviction entered on June 11, 2021 by Justice M. Callaghan of the Ontario Court of Justice.

Reasons for Decision

[1] On November 27, 2019, police executed a search warrant on the appellant’s home and seized two phones, a laptop, and a desktop computer. The desktop computer contained hundreds of images and multiple videos that the appellant conceded met the definition of child pornography. The files on the desktop computer were located within a digital backup (the “Backup”) of one of the seized phones. That phone itself had been purged of any data. Apart from the Backup on the desktop computer, none of the other electronic devices seized contained any child pornography at the time the search warrant was executed.

[2] The appellant was charged with multiple child pornography-related offences. He did not testify or call any evidence. He also conceded that he would have had knowledge and control of the child pornography on his phone at the time the Backup was created, approximately a year prior to the search. However, he argued that the Crown had not displaced a reasonable inference other than guilt, namely, that he had intended to delete this child pornography, and that the Backup had been created on his desktop computer automatically and without his knowledge. Since knowledge is an essential element of the offence of possession, he claimed that the Crown had not proven beyond a reasonable doubt that he possessed the child pornography in the Backup on the date particularized in the information (i.e., November 27, 2019). Accordingly, given that the Backup was the only child pornography that he could possibly have possessed on November 27, 2019, the appellant argued that he should be acquitted of all counts.

[3] The trial judge recognized that, since the Crown’s case was almost entirely circumstantial, R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, required the Crown to establish that an inference of guilt was the only reasonable inference that the circumstantial evidence permitted. After reviewing the evidence in some detail, the trial judge found that the only reasonable inference he could draw was that the appellant intentionally created the Backup with knowledge that it contained child pornography. He therefore found the appellant guilty of one count of possession of child pornography. The trial judge acquitted the appellant of the other charges in the information.

[4] The appellant concedes the trial judge correctly stated the principles relating to the use of circumstantial evidence as set out in Villaroman and, further, that he addressed reasonable inferences other than guilt arising from the evidence. However, the appellant argues his conviction should be overturned on the basis that the trial judge’s verdict was unreasonable.

[5] Where it is argued that the trier of fact reached an unreasonable verdict of guilt, an appellate court’s role is limited to determining whether the decision to convict is supportable on any reasonable view of the evidence: Villaroman, at paras. 55-56.

[6] In our view, the trial judge’s analysis and findings in this case easily satisfy that standard. The trial judge dismissed the possibility that the Backup might have been created unintentionally or without the appellant’s knowledge for a variety of reasons. These included: the fact that the Backup was the only time the appellant’s phone had been backed up on his computer, which in the trial judge’s view negated the possibility that the Backup had been created automatically without the appellant’s knowledge or input; the fact that the appellant had continued possession of the phone that had been backed up, which in his view supported an inference that the appellant meant to preserve the ability to restore the data from the Backup; and the fact that the Backup provided the appellant with an effective and password-protected way to digitally hide the child pornography on his desktop computer. The trial judge further found that the appellant’s suggested inference that he unintentionally or unknowingly created the Backup was speculative and found no basis in either the evidence or any gap in the evidence.

[7] In our view, the inferences which the trial judge drew from the evidence were open to him on the record and were reasonable. They provided a solid evidentiary foundation for the finding that the only reasonable conclusion to draw was that the appellant knowingly created the Backup. We are not persuaded that the verdict was unreasonable and therefore dismiss the appeal.

Signatures

“B. Zarnett J.A.”

“S. Coroza J.A.”

“P.J. Monahan J.A.”