Court File and Parties

Court File No.: City of Burlington 13-1061 Date: 2014-08-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — William Threader

Before: Justice Stephen D. Brown

Heard on: August 5 and 6, 2014

Reasons for Judgment released on: August 6, 2014

Counsel:

• Kelli Frew, for the Crown
• Raymond Morhan, for the accused William Threader
• Paul LaFleur, for the accused William Threader

Brown, J.:

1: INTRODUCTION

[1] William Threader is charged that he possessed child pornography on April 8, 2013 contrary to s. 163.1(4) of the Criminal Code.

[2] The material that is admitted by the defence as meeting the definition of child pornography is filed as Exhibit 4 in these proceedings and is comprised of 6 pages of printed materials containing child pornography that is printed and stapled together. On top of the material and also stapled to it is a Hotmail page, which is admitted to be the defendant's Hotmail account. It is a printed out cover page and email sent to the defendant on February 22, 2013 that contains information about the defendant's Choice Privileges account and information about hotels available to be booked through that rewards program.

2: ISSUES BEFORE THE COURT

[3] The issue before the court is whether the Crown has proved beyond a reasonable doubt that the defendant was in possession of the material filed as Exhibit 4 in these proceedings on the date in question.

3: THE EVIDENCE AT TRIAL

3.1 The Evidence of Matthew Butwick

[4] Matthew Butwick is the grandson of the defendant in this case. He resided with his grandfather and grandmother in a basement room of their home on Augustine Drive in Burlington for a period of about 3 years prior to the date that his grandfather was charged with this offence.

[5] He paid them a modest rent while living with them.

[6] Beside his basement bedroom was another room that had a bed and a desktop computer in it, together with a printer.

[7] The computer was owned by his grandfather and primarily used by him. Mr. Butwick occasionally used it. Approximately two years before, the defendant was advised by his bank to password protect his computer and he started to do this. He would sometimes change the password, but not always advise his grandson of the new password.

[8] His grandson was asked from time to time to fix problems with the computer. It was always getting viruses. Approximately one month before April 8 Mr. Butwick took the computer into the Future Shop to be cleaned, but it was still having problems. It was determined that the computer should be taken back in. When this was decided, Matthew Butwick wanted to find the receipt from the previous time that it was taken in to see if there was a warranty on that repair. He had given the receipt to his grandfather, but he had misplaced it.

[9] Mr. Butwick decided to look for the receipt. He is not sure whether his grandfather suggested this or if he decided it on his own.

[10] While looking for the Future Shop receipt he was searching in drawers of a white table when he found what is now Exhibit 4 in the bottom drawer, together with other papers of his grandfather.

[11] He was shocked and upset with the photos, as anyone who viewed them should be. He did not know what to do. He suffers from an anxiety disorder.

[12] He first phoned his mother who told him to hide the photos and when she returned she would confront her father with them.

[13] Matthew testified that he initially hid them, but then put them back in the drawer that he had found them in. Later, in cross-examination he admitted that he ultimately retrieved them from a shelf in the laundry room and gave them to the police.

[14] He was still upset so he decided to phone his best friend who is also his cousin, Jamie Threader, and Jamie's fiancée, Audrey. He told them what he had discovered.

[15] After mulling over what to do, Jamie Threader testified that he decided on his own volition to contact the police and he did so on the following day. He did not tell Matthew this because he was aware that Matthew had an anxiety disorder.

[16] Subsequently, after a few days, the police obtained a search warrant and attended to seize the computers. At that time Matthew gave them the photographs he had found. He also provided to them a statement that was somewhat protective of his grandfather stating that anyone could have accessed the computer.

[17] He testified that his grandfather was arrested and when he was released he attended at the police station to drive him home. On the way home he said his grandfather was upset with him that he did not go to him first.

[18] In cross-examination, Mr. Butwick was asked why he blamed his grandfather when he spoke to his mother, but later when he gave a statement to the police he suggested that many people had access to the computer. He responded by stating that he was trying to be protective of his grandfather and was calmer than when he had first spoken to his mother shortly after he found the photographs.

[19] It was suggested to him in cross-examination that it was he who had printed the pictures and then tried to implicate his grandfather. He strongly denied this. He admitted that he was mistaken about putting the pictures back in the drawer that he had found them in, but stated that this occurred over a year ago and he simply forgot that he had either not put them back or perhaps put them back and then hid them again.

[20] When it was suggested to him that he had other pictures in his possession he denied it, but did mention that when he returned from the police station with his grandfather his grandfather attended downstairs and started shredding some papers that contained some off-colour jokes. However, he also stated that his grandfather showed him a picture that he had of a blond girl about 6 years old performing a sexual act on an adult male penis. The defendant asked him if he thought that this was Julia who is a 16 year old relative. He cannot recall much else of the conversation.

[21] When asked by defence counsel why he did not mention this to the police or in his direct examination he stated that he was not asked.

[22] He also testified in cross-examination that his grandfather admitted ownership of the pictures to him right up until the time that he kicked him out of the house less than a week after the arrest. Again, when asked why he had not stated that to the police or to the Crown in direct examination he stated that he was not asked.

[23] When it was suggested to him that he was more computer literate than his grandfather, he denied this. He recalled that his grandfather had taken a computer course and had suggested that he do so as well.

[24] In redirect said that he was asked by his grandfather if the pornographic picture was a picture of Julia as his grandfather believed that it was Julia. He was told why his grandfather had the picture, but he could not recall what he had said.

[25] He also stated in redirect that he and his grandfather had two or three conversations before he moved out about the photographs and that his grandfather stated to him that he was going to take full responsibility for the photographs. This changed on the day he moved out.

3.2 The Evidence of Jamie Threader

[26] Jamie testified that he is the grandson of the defendant and the cousin of Matthew.

[27] He recalled the conversation where Matthew was telling him that he had found the photographs and stated that Matt was anxious and feeling nervous when he was talking with him.

[28] He does not recall discussing going to the police about it, but he decided on his own the next day to go to the police. His reason was that he has three children and "if you are looking at these pictures you are part of the demand that creates the supply".

[29] He stated that he had a lot of respect and affection for his grandfather and that their relationship had its ups and downs and that he did not always follow his grandfather's advice even though he should have. He testified that he has not had a relationship with him since he went to the police.

[30] He admitted to his criminal record that did include some crimes of dishonesty, but he freely admitted to those crimes that were somewhat dated. He is now working as a property manager.

[31] He admitted that he would access that computer up to three or four times a year, usually when trying to fix problems with it. He did not have the passwords for it and did not ask for them.

[32] When asked by the Crown whether he had ever seen child pornography before he paused for a very long time and then described an incident where the defendant had put in front of him a picture of a young blond haired girl with a ponytail. He said there was an adult penis in the photo and his grandfather asked him if the young girl in the photograph looked like Julia. His response was that he did not know. His grandfather stated that he got the photo from the Internet. This occurred 'several' years ago.

[33] In cross-examination he was asked if he thought that Matthew was nervous about possible police involvement and he said that he was not. He acknowledged that he told the police in his statement that he had not told Matthew of his decision to involve the police because it was possible that Matthew would tell his grandfather to dispose of the pictures. He also stated that he did not tell Matt because he has an anxiety disorder.

[34] He acknowledged that he did not report that picture to the authorities or take any further action after it had been shown to him.

3.3 The Evidence of William Threader

[35] The defendant testified in his own behalf.

[36] He is 82 years of age and married for 63 years. He has 5 children being two boys and three girls and 16 grandchildren and 18 great grandchildren.

[37] He stated that he has diabetes, arthritis in his hip and spine and that he has a bit of dementia and that he sometimes gets confused easily.

[38] He denied any knowledge about the printed pictures until the police showed them to him. He said that when he was shown the stapled together material he admitted that it was his when he saw the cover page, but when he saw the images underneath the cover page he denied that they were his.

[39] He thought the cover page was a page that he had stuck on a bulletin board in the room that had been taken down a few weeks before his arrest.

[40] It had contained telephone numbers of a hotel that he and his wife vacationed at in Florida so that the children could contact them when they were in Florida. He was not sure who took it down. It is to be noted, however, that the first page of Exhibit 4 does not contain any telephone numbers of hotels.

[41] The defendant vehemently denied that he had possession of the photographs or knowledge of them. He stated that he is not very computer literate and that Matthew is far more computer literate than he is.

[42] He was adamant that Matthew stayed with him in his home until June when he found out from the Crown disclosure that Matthew had first found the photos and then told Jamie about them who contacted the police.

[43] He acknowledged that when Matthew had picked him up from the police station he had admitted that he would accept responsibility for the pictures, but that that was because he was very old school and he would protect everyone who was in his house and everything in his house was under his care.

[44] He admitted to shredding his jokes that the police had left after his return from the police station, but denied ever showing Matthew the picture that he had described.

[45] He stated that he did show that picture about 10 years before to Jamie and to his wife. He was unclear where he got the picture. At first he said it was from a weirdo porno magazine that he had found somewhere in his house. He thought that it was a picture of Julia because at the time there were some allegations of sexual misconduct against her. He said he destroyed the photo shortly after finding it.

[46] He talked about the motel brochure that had phone numbers on it that went missing was printed by him about 3 years before. When was confronted on cross-examination and shown the cover page of Exhibit 4 he confessed that that page did not contain any telephone numbers.

[47] He stated that he was not very computer literate but that he was able to open and send email, access the Internet and do online banking. He also filed online tax returns for many of his family members. The drawer where Exhibit 4 was found contained some of these tax materials.

[48] In cross-examination he stated that he was exaggerating when he stated in direct examination that he would have 200 people in the house. He said that he had a big family and that anyone could use the computer.

[49] He said that he did not print the cover copy of Exhibit 4 even though it was a cover page from his admitted email account. He said he sometimes kept his emails and other passwords in a little red book on the computer desk and that they would have been accessible to anyone who looked.

[50] He also said he may have been exaggerating or that he had a big mouth when he said to Matthew that he should take a computer course as well. He said that he had taken a course about 10 years ago that lasted 6 weeks and that basically taught him "how to turn the computer on".

[51] He said the pornographic image that he had shown to Jamie was done about 10 years before and that he had found it in a magazine that "weirdos" buy and that he thought that it looked like Julia. He was very vague and evasive about how he found the magazine and what he did with the picture.

[52] He said that he was upset on the ride home from the police station and that he and Matthew had both thought that the Future Shop had found something on the computer and notified the police and that he did not know that it was Matthew who had found the photographs until June when he saw that in Crown disclosure.

[53] He suggested that Matthew might have wanted to "get even" with him because Matthew had wanted to buy a truck and had wanted his help to do so. The defendant told him to save half of what was needed and then they could see about a loan. Just before he left for the weekend he had given him a toy truck and thinks that this possibly would have angered him.

[54] He also said that Matthew has an anxiety problem and "doesn't do things like everyone else".

3.4 The Evidence of Margaret Threader

[55] Mrs. Threader is age 83 and has been married to the defendant for 63 years. She confirmed that they have a large family and anyone who came into their home was allowed to use the computers.

[56] She stated that her husband mentally is okay but sometimes forgets things like she does.

[57] She stated that in all the years she has known him he never exhibited any interest of inappropriate pictures of children.

[58] She did recall the pornographic picture of a six-year-old girl that she saw about 10 years ago that her husband thought was Julia who is now aged 16. She cannot remember whether the picture was a printed one or one cut from a magazine.

[59] She confirmed that Matthew moved out of her house within one week of her husband being charged, which was contrary to the evidence of the defendant but corroborative of the evidence of Mr. Butwick.

4.0: Analysis

[60] The central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[61] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.

[62] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, 2000 SCC 40, Mr. Justice Iacobucci stated for the majority at paragraph 242:

242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....

[63] In this case, the defendant has testified. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.). There, Mr. Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[64] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence but his evidence raises a reasonable doubt with respect to his guilt.

[65] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[66] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness' interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[67] As a result, I do not place as much weight on a witness' appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent; that is, does the evidence fit together and is one piece of their evidence consistent with another? Secondly, is the testimony of a witness externally consistent? Does it fit with other known or accepted facts? Does it fit in with other evidence or testimony that is accepted or believed? Finally, does the testimony have a ring of truth to it? Does it stand the test of common sense?

[68] In short, the real test is in determining if the evidence of the various witnesses is credible. The question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[69] I can accept some, all or none of a witness' evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[70] Simply because I have not averred to a submission made by counsel or a piece of evidence in this proceeding does not mean that I have not considered it in arriving at my conclusion.

[71] The defendant's position is that the Crown has not proven beyond a reasonable doubt that he possessed the photos in Exhibit 4 in that they have not proved the essential elements of possession being knowledge and control. The defence contends that anyone could have accessed the computer email of the defendant and printed the images and put the email on top of them to deflect suspicion away from them. They submit that the real possessor of the pornography was Matthew Butwick. They suggest that it is implausible that he would hide the material and that he was confused as to where he had put it, which in some way is suspicious.

[72] In arriving at my decision I have carefully assessed the demeanour of the witnesses that have testified before me. I have come to the conclusion that Matthew Butwick was a credible and honest witness, as was Jamie Threader.

[73] I find that their evidence was credible and, for the most part, they corroborated one another.

[74] Neither of them had their evidence shaken in cross-examination and, indeed, some of the most damaging evidence came out during the cross-examination.

[75] For instance, Matthew Butwick did not mention the pornographic photograph that his grandfather had shown him during the shredding until cross-examination. Nor did he mention that his grandfather had admitted responsibility to him for the photos until cross-examination. His response for not doing so was that no one had asked him about this. I accept that.

[76] His confusion as to whether he put the photos back in the drawer is understandable, in my opinion, because he was quite traumatised by this event. He had been told to hide the photos by his mother and he wanted to deal with the matter without the police. In other words, he was a reluctant witness who did take steps to try and not incriminate his grandfather to the police and allow a way out because of the love that he had for his grandfather.

[77] It was only when Mr. Morhan suggested that he was the creator of the photographic prints that he responded with the statement that his grandfather had said to him on three occasions before he moved out that he was accepting responsibility for the photos. This was done after he gave his statement to the police and prior to him being asked to leave the residence. I accept that he was asked to leave within a week of the grandfather being charged.

[78] I also accept as a fact that his grandfather did show to him a picture that was child pornography when he returned from the police station while doing his shredding. There is no evidence that he and Jamie had ever discussed this photograph and neither of them was asked that question.

[79] Although it was possible, their descriptions of the contents of the photograph are remarkably similar. Even if he had been told by Jamie of the photograph that would only be pure speculation, it is remarkable that he would be told that it was a young blond girl age 6 to 8 and that a male adult penis was involved. The defendant's wife corroborates this description as well.

[80] I find that it would be incredible to think that Matthew would print those photographs, then tell his mother that he had found them and then tell Jamie and Jamie's fiancée about finding them on the same day.

[81] If, as suggested, he was worried that Future Shop had found some materials or that the police would suspect that these materials had been accessed, I think that he would have destroyed the photographs rather than tell people about them.

[82] Taking steps to destroy the photographs or the hard drive of the computer would make more sense than taking steps of advising his mother and best friend about them and others about them.

[83] He showed obvious concern and upset about the photographs and was at a loss as to what to do. The fact that he cannot remember whether he put them back in the drawer or not does not concern me. That was, in all the circumstances, a relatively minor detail.

[84] I am also not concerned about the inconsistency with the evidence from Jamie that Matthew had told him that his grandfather had told him to look for the receipt but not in the white drawers. Again that does not concern me enough to have me doubt either of their credibility or to enhance the defendant's credibility.

[85] I am not of the view that the defendant testified truthfully before me. His explanation for the 'Julia' photograph, his vagueness about how he came to be in possession of it and the fact that he told Jamie that he got it off the internet all cause me considerable concern.

[86] It simply does not make sense that he would access this material on the internet, as I find that he did, and I accept Jamie's evidence on this point in preference to the defendant, and then show that vile photograph to his grandson, his wife and his other grandson, as I accept that he did, to ask them if the young girl in the photograph looked like Julia. I think that him accessing, printing and then showing that photograph and, as I find he did, keeping it all those years shows to me that he was perhaps testing the waters to see whether others shared his prurient interests while maintaining the cover of concern for a young girl in his family.

[87] The defendant's testimony was rife with improbabilities. The fact that he admitted to the police that the cover page of Exhibit 4 was the recently disappeared page of hotel phone numbers is implausible, in my view. I find that he did print off the photos in Exhibit 4 and then put the cover page on so that anyone looking would find what appeared to be an innocuous bundle of hotel or email literature.

[88] To state that some other family member would have access to his email password in the little red book and then print out these illegal pictures and then put his email cover page on the top of them and staple them together defies belief. It also defies belief that the person that would do that would then leave it in a drawer knowingly used by the defendant based on his own evidence and that of his wife. That would be ludicrous.

[89] Finally, to have that person tell his own mother of the existence of these illegal pictures is against all common sense.

[90] I find that the defendant as well admitted responsibility for the pictures to Matthew on several occasions until shortly before Matthew was asked to leave the home. After that, I think that the defendant realized what trouble he actually was in and came up with the excuse that he gave in his evidence that he admitted responsibility for them because he was old school and was trying to protect those in his house and the "hundreds" of people that he says accessed his computer.

[91] Mrs. Threader in her evidence was hard pressed to name anyone other than Jamie or Matthew that ever used the computer and that was usually only when it needed to be fixed. She said, for instance, that Sandra Parcham used the computer and Christopher Butler but usually not alone.

[92] I find that the defendant took careful steps to attempt to minimize his knowledge of his computer literacy to shield himself in some way from these accusations in his testimony before me. I do not believe his evidence, nor does it leave me with a reasonable doubt.

[93] After examining all the evidence in this trial, I am certain beyond a reasonable doubt that it was the defendant and the defendant alone who printed the images in Exhibit 4 and that he put a copy of his innocuous email printout as the top copy of the stapled bundle to deflect any attention from anyone who may have seen the bundle.

[94] Of course it was careless to leave these photographs in a place that was accessible by others, but being naïve or careless does not, in my view, make it an improbable act.

[95] What is improbable, I find beyond a reasonable doubt, is that another family member who had no motive to do so would effectively conspire to print these photographs and then advise the authorities of them or their friends and family members of them. Equally implausible is that some other family member would print these pictures and not take them to their house, but leave them in a drawer where it was apparent that the defendant and others had access to.

[96] After examining the evidence as a whole, the Crown has convinced me beyond a reasonable doubt that the defendant was in possession of the printed photographs that are child pornography and that he had printed them and stored them in the drawer in his desk from February 24, 2013 onwards to the date of their discovery by Matthew Butwick.

[97] Accordingly, the defendant will be found guilty.

Released: August 6, 2014

Signed: Justice Stephen D. Brown