Court File and Parties

Ontario Court of Justice

Date: 2018-01-11

Court File No.: Brampton 3111 998 16 3530

Between:

Her Majesty the Queen

— and —

Burton Boodram

Before: Justice G.P. Renwick

Heard on: 23, 24, 26, 27 October, 19 December 2017

Reasons for Judgment released on: 11 January 2018

Counsel:

• M. Stevens, counsel for the Crown
• E. Brown, counsel for the defendant Burton Boodram

RENWICK J.:

INTRODUCTION

[1] The defendant is charged with accessing, possessing, and attempting to distribute child pornography and one count of obstructing police by giving a false statement during a police interview. These charges stem from an investigation which began following an attempt to distribute child pornography in an email sent to a recipient in the United States, the execution of a search warrant at the defendant's residence, and the discovery of child pornography on two cellular telephones seized from the defendant's bedroom.

[2] The trial involved evidence from 6 prosecution witnesses and 3 defence witnesses, including the defendant, heard over five days. Exhibits included two video statements of the defendant given to the police, extraction reports and the contents of the two cell phones seized from the defendant's bedroom, and various videos and photographs depicting the defendant using his hands for various activities, which because of his physical condition was a live issue in the trial.

[3] There were also several concessions made by the defendant. Among them were the following: the defendant's statements were voluntary and admissible; the items categorized by police as child pornography meet the definition within the Criminal Code (the "Code"); and there was no issue as to the continuity of exhibits retrieved by police and produced to the court.

[4] In terms of the possession of child pornography, it was alleged that there were 4769 unique photographs and three unique videos of child pornography contained within the Samsung cell phone and 833 unique images and three unique videos of child pornography contained within the LG cell phone seized from the defendant's bedroom.

[5] The main issue in this trial was the identity of the person who accessed and attempted to distribute the child pornography found contained within the two cell phones, and whether the defendant was in possession of the child pornography at the time when the phones were seized from his bedroom by the police.

[6] Another key issue for my consideration was the credibility and significance of the defendant's testimony that he was unaware of the child pornography, he never accessed, possessed, nor ever attempted to distribute child pornography, and that he permitted his friend, Chris (last name unknown), to use both of the cell phones recovered by police. The defendant's evidence even implicated Chris in sending photographs of child pornography to one of the defendant's friends.

[7] In these reasons, I will detail some of the key pieces of evidence and my findings, then I will discuss the law, both generally and as it applies in this case, and lastly I will determine whether or not the guilt of the defendant has been proven beyond a reasonable doubt in respect of all of the charges.

THE EVIDENCE

[8] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case and I will only discuss parts of the evidence where it serves to underscore my findings.

[9] In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive.

[10] Some of the issues here involve witness credibility and reliability. A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[11] The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses. However, confirmatory evidence in particular need not directly implicate the defendant or confirm the prosecution's theory in every respect. Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account.

Sergeant Andrew Ullock

[12] Sergeant Andrew Ullock of the Peel Regional Police was the lead investigator of this matter. This witness impressed me as a diligent, knowledgeable, above-average investigator who possessed a strong moral compass, a sound understanding of his role and responsibilities, and a healthy respect for both the people who come to his attention as possible suspects and their rights to a fair and impartial investigation. He was not hasty in coming to any conclusions and ultimately charging the defendant.

[13] Sergeant Ullock was present for the execution of a search warrant at the defendant's basement apartment on 13 January 2016. He testified that when he reached the basement apartment of the defendant, the door to the defendant's bedroom was locked, and after waiting several minutes for the defendant to open the door, he forced it open in order to prevent the destruction of evidence. It was Sergeant Ullock who located and seized the Samsung phone from the floor near the defendant's bed and the LG phone under the nightstand in the defendant's bedroom. During a telephone call initiated by the defendant the day after the execution of the search warrant at his residence, this investigator used the Samsung phone to retrieve a medical doctor's phone number for the defendant. At this point, the LG phone, which the defendant admits was his, was unable to be accessed without technical assistance. Sergeant Ullock noted that there was also a contact in the Samsung phone for "Christian Clarke," who the defendant concedes is his good friend and not the same person as Chris.

[14] After conducting some investigation and learning about the child pornography on the Samsung phone, Sergeant Ullock arrested the defendant. On that day, 22 January 2016, the defendant gave a videotaped exculpatory statement to Sergeant Ullock. He explained that the Samsung phone had been his but because it was having battery issues which he was unable to resolve in the summer of 2015, he had given the Samsung phone to his friend Chris. The defendant did not know how to reach Chris, except to occasionally run into him at Starbucks or on the street. The reason the Samsung phone was found in his bedroom, explained the defendant, was that Chris had spent the night and he had apparently left it behind when he had stepped out to meet somebody about an hour before the police arrived to execute the search warrant. Before concluding the interview, the officer advised the defendant that he would not be charging him until he investigated Chris, because, based on the defendant's statement, it was a possibility that the defendant was not the person who had accessed, attempted to distribute, or had possessed the child pornography. Near the end of the videotaped statement provided on 22 January 2016 the defendant said that it was not unusual in the Caribbean culture not to know the last name of a friend, and in fact he did not even know the last name of his other friend, Christian. During his videotaped statement the defendant reiterated that he did not know Christian's last name two additional times.

[15] Sergeant Ullock continued his investigation and met with the defendant's close friend Willhelmena Aldridge ("Billy-Jo") on 19 February 2016. In the fullness of time it became known that Ms. Aldridge had lied to the officer about two things: she told Sergeant Ullock that the defendant was unable to use a cell phone because of a physical limitation with his hands, and she confirmed that she knew the defendant's friend, Chris.

[16] On 24 February 2016 Sergeant Ullock was informed that images and videos found on the defendant's LG phone also contained child pornography. He personally inspected the images and videos and he testified that they met the Code definition of child pornography. The officer also learned of sexually explicit chat messages with a woman he later learned was Leanne Jussila. Moreover, on 26 February 2016 the sergeant discovered text messages of a personal nature between Ms. Aldridge and the defendant, and images and videos taken by the defendant which depicted him naked and masturbating, which undermined the defendant's and Ms. Aldridge's statements that the defendant's physical limitations prevented him from using a cell phone.

[17] On 17 March 2016 the officer obtained a warrant to arrest the defendant at his residence. Again, following a conversation with duty counsel, who had apparently advised the defendant that he did not have to speak to the police, the defendant gave an exculpatory videotaped statement. In this statement, contrary to the earlier statement, the defendant told the officer that his landlady had met Chris. Additionally, for the first time, the defendant told the police that Chris had used his LG phone many times.

[18] In cross-examination, Sergeant Ullock admitted having seen a flip-phone on the defendant's television in his bedroom. He inspected it at the time and determined that it could not be used to access the internet or send emails and was therefore outside of the scope of the search warrant, so, he left it behind.

[19] There was no real challenge to Sergeant Ullock's evidence. Most of his evidence was presented in document or digital form. I found this witness to be well-balanced, earnest, and truthful. I accept all of his evidence as credible and reliable, without exception.

Mr. Aamer Merchant – Expert Witness

[20] Mr. Aamer Merchant testified as the forensic examiner who extracted the contents of the two cell phones seized from the defendant's bedroom. He was qualified on consent to provide expert evidence on the identification, preservation, collection, analysis, and presentation of electronic evidence. It was through this witness that the prosecution introduced much of the contents of the seized cell phones, including the child pornography, which became a sealed exhibit, #12B. As well, this witness authenticated an email message sent on 22 September 2015 using the Samsung phone. The email contained an image of a young, naked, female child apparently engaged in sexual intercourse with an adult male. This photograph clearly meets the Code definition of child pornography and I accept that this image was sent in an email from the Samsung phone. Mr. Merchant testified that both the Samsung and the LG phone were associated to the same phone number: 647-270-7021. There was no cross-examination of this witness.

[21] I accept all of the evidence of Mr. Merchant as truthful and reliable, without hesitation. It was given in a straightforward, almost nonchalant manner, his role was limited to a technical extraction of data using appropriate software, he had no other role in this investigation, and his evidence was not contested.

Ms. Sarah Hyatt – Starbucks Barista

[22] Ms. Sarah Hyatt testified that she was a Starbucks barista who dealt with the defendant in 2016 and she had seen him with several women, but mostly with a woman she described in such detail I am satisfied it was Ms. Aldridge. In cross-examination she admitted that the defendant may also have attended Starbucks with males on different occasions. I accept this evidence in its entirety as truthful, although the brevity and lack of detail within this testimony lowers its reliability and ultimate probative value.

[23] The third day of this trial was the most significant and the final day for the evidence advanced by the prosecution. Ms. Aldridge, Ms. Jussila, and the defendant's landlady, Ms. Spencer, testified.

Ms. Willhelmena Aldridge ("Billy-Jo") – Defendant's Close Friend

[24] Ms. Aldridge testified that she was a close friend of the defendant from 2012 until 2016. She admitted that she had lied to the police to protect the defendant. Ms. Aldridge testified that the defendant had lead her to believe that a text message that she had sent to him in which she called the defendant a pedophile had started the investigation that ended up with his apartment being searched. She felt guilty and she told the defendant that they should talk to the police to explain this, but the defendant did not want to do that. She also testified that she received a text message from the defendant when she was about to meet with Sergeant Ullock, that reminded her that the defendant could not use his hands. Ms. Aldridge told the officer that the defendant could not use a cell phone because of his hands and that she knew Chris, but she admitted that these were lies. Ms. Aldridge explained that she had told these things to the police at the defendant's behest, because she believed she was responsible for arousing police suspicions about the defendant.

[25] During her testimony, Ms. Aldridge advised the court that she had pleaded guilty to obstructing police and she had received a suspended sentence and probation.

[26] Ms. Aldridge also identified many of the videos found on the defendant's LG phone, including those showing the defendant driving in a snow storm, video recording himself driving, using his fingers to tap her face or hook her mouth as she slept, and using his phone to video record part of Ms. Aldridge's birthday celebration.

[27] It is clear from Ms. Aldridge's evidence that she and the defendant were quite close. They were good friends to one another and they shared many pleasant experiences. Ms. Aldridge was clear that because of his hands the defendant constantly dropped things, including his cell phone, and he used his teeth to retrieve his bank cards from his wallet, but overall, he had found ways to cope with the limited mobility of his fingers and indeed, he could use a cell phone.

[28] In cross-examination, Ms. Aldridge admitted that she had seen the defendant send text messages and hold a phone, although she could not provide any details, and she had never set a timer for the defendant to take photos or videos on his phone. She admitted that she still cared for the defendant and she was having difficulty coping with him being charged.

[29] In terms of her credibility, it is an understatement to say that I must be cautious in evaluating Ms. Aldridge's evidence because she admitted that she had lied to the investigator and she perpetuated her lies until she was confronted. I have approached this evidence with a heavy dose of skepticism. Nonetheless, in the end, I am satisfied that Ms. Aldridge was believable and she testified candidly and honestly before me.

[30] I come to this conclusion for several reasons. Firstly, Ms. Aldridge has accepted responsibility for the lies she told the police. She was charged, she pleaded guilty, and she has been sentenced. If anyone can appreciate the difficulties that lying might entail, it is Ms. Aldridge. Secondly, there is a reason Ms. Aldridge lied to Sergeant Ullock and there were no suggestions of any reasons why she may have been anything less than truthful before me. Initially, Ms. Aldridge believed that having called the defendant a pedophile she had caused the police search the defendant's residence. She felt terrible and wanted to mitigate the fallout she believed she had caused. Thirdly, Ms. Aldridge appeared earnest when she testified and she displayed reasonable emotions that aligned with the content of her words. It was obvious that Ms. Aldridge was genuinely concerned for the defendant. However, I do not give this factor much weight, because I do not know Ms. Aldridge, and I cannot be certain that she is not trying to mislead me by her demeanor while testifying. The fourth reason I believe Ms. Aldridge's evidence is its plausibility. If she were being dishonest and she actually knew Chris, why would she have pleaded guilty to obstructing the police. Why would Ms. Aldridge seek to mislead me about her knowledge of Chris' existence? I understand and accept why Ms. Aldridge lied to Sergeant Ullock; it was to protect the defendant. There was never any suggestion or evidence that Ms. Aldridge has animus for the defendant or a reason to implicate him in the matter before the court. Finally, Ms. Aldridge was a balanced witness with genuine affection and concern for the defendant. I also believe her when she says that she was not aware that the defendant had ever accessed or possessed child pornography.

Ms. Leanne Jussila – Defendant's Former Girlfriend

[31] Ms. Leanne Jussila was the prosecution's lynchpin. She testified that she met the defendant through a dating website and they dated for a few months. Ms. Jussila was clear that she did not know the defendant's friend, Chris. She stated that Billy-Jo (Ms. Aldridge) was the only friend of the defendant's that she had ever met.

[32] Ms. Jussila also testified that part of her relationship with the defendant included intimate role-playing. During these occasions, and in furtherance of their sexual play, the defendant wanted her to call him "Daddy" and to pretend that she was a 12 year old child. The role playing spilled over to their chat communications on various internet platforms. In these messages, Ms. Jussila testified that the defendant fantasized about having sexual relations with an 11 year old on a beach. Moreover, the defendant sent her "provocative" photographs of "younger people", some of whom were dressed, some were undressed and you could see their "external genitalia." This made Ms. Jussila uncomfortable and she messaged the defendant "Just send me pics with older girls k."

[33] The witness also testified about the content of messages recovered from the defendant's LG phone that discussed having a "threesome" with Ms. Jussila and a 13 year old child. Ms. Jussila specifically recalled one portion of the chat messages which were produced to her by the prosecutor:

Line 961 (to Leah): say if my friend daughter comes and wanna suck and play with my cock would you run

Line 962 (to defendant): no

Line 963 (to defendant): I wouldn't run

Line 969 (to Leah): gotta pic of your young daughter

Line 970 (to defendant): no

Line 971 (to Leah): why

Line 972 (to defendant): not my kids baby

Line 973 (to Leah): bring me one of her panties

When she was asked in reference to the message at line 972 why she would not send the defendant a photograph of her children, Ms. Jussila simply responded: "Not appropriate." She admitted that she did buy a pair of small adult underwear and brought them to the defendant, subsequently.

[34] Later in her testimony, Ms. Jussila gave more details about the inappropriate photographs the defendant had sent her: they involved bondage; they were sexual; they involved 16-18 year olds; they were pubescent; and some of them were 11 or 12 years old. When she learned of the search warrant at the defendant's apartment she said it "wasn't good" and the defendant advised her to word things differently to make it sound better than it was, if she were questioned by police.

[35] Lastly, Ms. Jussila testified that she had no concerns that it was someone other than the defendant who had sent her the photographs and communicated in their chats, because "the conversations were similar in person as in text." She also confirmed that she had seen the defendant texting in the past. Ms. Jussila was cross-examined very briefly, but not with respect to the damning content of her testimony.

[36] I have no hesitation in accepting as truthful and reliable the evidence of Leah Jussila. Throughout her testimony, she appeared honest in her recollections and genuinely ashamed of her behaviour in permitting the discussions involving the defendant's fantasies. There was no motive suggested for Ms. Jussila to be untruthful or to implicate the defendant in the behaviour she described, and her evidence was confirmed in several respects by the contents of messages she had exchanged with the defendant. As well, there was a balance to Ms. Jussila's evidence given her admissions of her participation in the sexual role-play and fantasy discussions she described. In accepting the evidence of Ms. Jussila, I have specifically cautioned myself to guard against propensity or bad-character reasoning, or the drawing of inappropriate inferences based upon the content of her evidence and the nature of her sexual relationship with the defendant.

Ms. Yolanda Spencer – Defendant's Landlady

[37] The defendant's landlady, Ms. Yolanda Spencer was the final prosecution witness. Ms. Spencer confirmed that the defendant had given her the name Christian Clarke as one of his references before moving in. Ms. Spencer appeared to genuinely like the defendant, she thought he was generally a helpful tenant, and she said it was a shame that he was charged by the police. This witness testified that the defendant was usually observed coming in or out while talking on his cell phone and she even described how the defendant called Billy-Jo using his second knuckle on his right hand and his index finger while cradling the phone with his left hand close to his chest. Lastly, she was not aware of any other friend of the defendant and she had never observed any males spend the night as the defendant's guest.

[38] In cross-examination, Ms. Spencer admitted that the defendant had told her that he had given his friend the wi-fi password and that was how the child pornography had been accessed, which alerted the police to her internet protocol address. She also agreed that male guests may have spent time with the defendant, but of any, she had never been made aware.

[39] I find that Ms. Spencer had a possible motive to fabricate her evidence against the defendant. She had been in a landlady-tenant relationship with the defendant, who is disabled, and she had never made any physical accommodations to the doors of the residence to make them more accessible to the defendant. Nonetheless, I am convinced that her prior contractual relationship with the defendant had no influence upon her while she testified. Her evidence was balanced, in terms of her praise of the defendant's good qualities and his helpful nature and her evidence at all times was consistent and plausible. I accept without reservation Ms. Spencer's evidence that the defendant gave her the name Christian Clarke, that he had a particular way of using a cell phone, and that she had never known him to have any overnight male guests.

Dr. Gyl Midroni – Defendant's Neurologist

[40] Dr. Gyl Midroni testified on behalf of the defence, as one of the defendant's treating physicians for his leprosy. He is a staff neurologist and assistant professor at the University of Toronto School of Medicine. In 2011, Dr. Midroni tested the defendant's hand and arm nerves and muscles electrophysiologically as an objective indicator of their state and functionality. He explained that the defendant had peripheral neuropathy that lead to the loss of the use of the fingers of both hands, complete and severe paralysis of the small hand muscles, and partial paralysis of some of the forearm muscles that are required to extend or spread the fingers from their mostly contracted state. He opined that the defendant would have had difficulty performing routine grooming tasks, but the doctor conceded that he had never tested the practical functionality of the defendant's hands. Dr. Midroni suggested that while he would expect the defendant to experience difficulties with small motor functioning overall, the defendant would likely make adaptations to perform daily tasks.

[41] In cross-examination, Dr. Midroni testified that the defendant could likely move his fingertips a little, but he likely had no fingertip or hand strength. The doctor also testified that the defendant approached him in March 2016 for a letter for his court case where there was concern over the defendant's use of a cell phone, which he provided. Dr. Midroni never tested to see if the defendant could use a cell phone, and given his role, this is not something he would ever do for any patient.

[42] I have no reason to doubt any of the medical testimony lead by the defendant and I wholly accept it as truthful and accurate.

The Defendant's Testimony

[43] The defendant testified on his own behalf. I must evaluate his evidence like any other testimony. However, I remind myself that I must not consider the defendant's evidence and other contradictory evidence as if this were simply a contest of competing versions of events. That does a disservice to the presumption of innocence and the unending prosecutorial burden to establish the defendant's guilt beyond a reasonable doubt. Lastly, I cannot hold the defendant's evidence to a higher standard than the other evidence in this case.

[44] The defendant testified that he gave Chris his Samsung phone when it was broken and he had acquired the LG phone. He had no knowledge of the child pornography on either phone. Chris was an acquaintance he had met when living in a different residence in 2000. He would see Chris a couple of times a week and he let Chris stay at his apartment if Chris was having fights with his girlfriend and needed a place to sleep. The defendant described Chris using his LG phone to make calls, which were often made upstairs or outside due to cell phone reception problems in the basement.

[45] The defendant testified that his disability prevented him from texting. He relied upon friends and even strangers on the street to send text messages for him. As for the video and photographs of the defendant, he indicated that he had female friends set the timer on his phone to take photos or videos. The defendant testified about his dressing routine and told the court that he has to be injected daily for his diabetes and that he can self-inject, but it is a very cumbersome process.

[46] I observed that as the defendant testified, there was some flexion and extension movements of the fingers of his right hand. At one point, I could plainly observe the defendant put his right thumb under his cupped fingers.

[47] In cross-examination, the defendant maintained that despite the personal and intimate nature of the text discussions he had with Ms. Aldridge and Ms. Jussila, somebody else had typed those messages on his behalf. The people he had relied upon to text for him were his roommate, different female friends, or Chris. In fact, he said it was Daniel that texted Ms. Aldridge to remind her when she spoke with the police that the defendant was unable to use his hands. The defendant denied that his bedroom door was locked the morning when the police came with a search warrant, and he explained Sergeant Ullock's inability to open the bedroom door was the result of door-frame expansion due to the weather, which caused the door to stick.

[48] At one point in cross-examination, the defendant testified that he told Sergeant Ullock that the flip-phone on the television belonged to Chris. But he had no explanation for why the phone was not seized by the police. Nor did he point out other clothing and a duffle bag left behind by Chris, because the officer never asked him about it. He testified that Chris came back after the police had left and he permitted Chris to take his phone and belongings with him.

[49] The defendant was very clear during cross-examination that Ms. Jussila met Chris through a dating website and Chris introduced her to the defendant. He testified that she was lying when she testified that she did not know Chris. When asked why he did not mention to the police that Ms. Jussila also knew Chris the defendant said that this never came up. The prosecutor posited that the defendant did not tell the police about Ms. Jussila because he knew he had sent her child pornography and he did not want the police to speak to her. The defendant's response to this was to ask why Ms. Jussila did not call the police if the defendant had sent her child pornography.

[50] When the defendant was confronted with his claim that Chris had returned to his apartment after the police had left and retrieved his flip-phone and belongings but the defendant did not mention any of this in his 22 January video statement, the defendant testified that he mentioned this to Sergeant Ullock outside the video interview room, when he was in the cells. The prosecutor returned to this area again. The defendant was reminded that in his statement of 22 January he said he had not seen Chris since the police had broken his door during the execution of the search warrant. The defendant tried to explain that this meant he had not seen Chris since that day, which has 24 hours in it and included the time after the police had left his residence and Chris had returned.

[51] As for the existence of the defendant's contacts on both the Samsung and LG phones (Christian Clarke and Dr. Alex Chen), the defendant said that despite the Samsung getting reset by the phone company ("wiped" of all of his information), when he gave the phone to Chris the contacts remained intact.

[52] The defendant was adamant that he never had any conversations with Ms. Jussila about having sex with children and she did not bring any kids' souvenirs to his place. According to the defendant, Chris had all of the illicit text conversations with Ms. Jussila.

[53] Dr. Midroni was also mistaken when he claimed that the defendant sought a letter with respect to a concern about the defendant's ability to use a cell phone, because the defendant said he never specifically asked this of the doctor.

[54] The defendant was also confronted with exhibit 5D, a photograph of him in which an active (illuminated) cell phone appears on the bed beside his leg. The defendant denied that it was the Samsung phone, but explained that it was the phone of a female friend who was in his washroom at the time.

[55] One of the most critical areas of cross-examination involved the web browsing history for the Samsung phone which the defendant claimed was used by Chris. Tab 7 of exhibit 14 showed that the phone was used to search for sexually explicit material from 12:42 am until 3:16 am the morning when the police came to search for child pornography. The defendant explained that Chris had been using the Samsung phone upstairs or outside during this time period. This extended use apparently ended less than 4 hours before Chris left to meet someone and the police arrival at 7:08 am.

[56] It was not asked in cross-examination, so I am left to wonder why in the defendant's first video statement to the police he claimed no less than three times that he did not know Christian's last name, yet he provided this name to Ms. Spencer to rent her basement apartment, and the full name, Christian Clarke, was one of the contacts that did not get deleted when the Samsung phone was reset and given by the defendant to Chris. I am also puzzled about Chris' hasty departure to meet someone before 7:00 am, without either his pay as you go flip-phone or his Samsung cell phone.

[57] In the end, despite all of the explanations given by the defendant, I am not satisfied that he was truthful during his evidence.

[58] I found the defendant's testimony to be completely malleable dependent upon the questions he was asked. For example, in his evidence in chief he was asked whether he had taken the video of himself masturbating. The defendant testified that a "girl" was present and she had taken the video. Just before this question he had said that a "girl" had set up the timer for the photo of the defendant standing naked in the mirror. He said that "she's not here right now" and it was a "girl" he had known for a little while. During his cross-examination the defendant was asked to confirm that he had said in chief, on 27 October 2017, that he had random girls assist him with videotaping himself. He confirmed this answer. Several questions later the Crown asked if the defendant agreed or disagreed that he did not have these random girls from Starbucks assist him with videotaping himself masturbating. The defendant disagreed. A few questions later, the cross-examination included the following exchange:

Q: Well, Leanne and Billy-Jo didn't help you take pictures masturbating?

A: Oh ya, they did. They did.

Q: So this is the, so, we're on now the fifth, sixth day of the trial, and this is the first time that we're hearing that Leanne and Billy-Jo were the ones who helped you take videos of yourself masturbating.

A: You asked me a question; but you asked me was did they ever help me; if they ever use the phone and I told you "yes."

Q: You testified on the last occasion, "I didn't videotape myself, I had a girl videotape me. That girl videotaped me."

A: Yes, that's correct.

Q: You didn't think it was important to say it was Leanne, who had already testified? Or, Billy-Jo, who had already testified?

A: You never asked the specific name.

Q: So, you're only gonna tell us if we ask you?

A: That's what I was told.

Q: So, you're holding back information that's important to your defence…

A: There's no information that I'm holding back, no.

Q: I'm gonna need for you to wait till I finish the question before you start answering.

A: Sounds good, yes.

Q: My question is, you're holding back information that's important to your defence?

A: No, I'm not.

Q: Alright. So you don't think it would be important when Leanne and Billy-Jo were here to raise the issue: You guys, were the ones who were helping me to videotape myself?

A: How could I raise the question, when I was sitting on the other side?

Q: And when you got up and started testifying on the 27th of October, you said nothing in your evidence in chief about these people, Leanne and Billy-Jo, helping you videotape yourself.

A: I told you that upfront.

Q: And, I'm gonna suggest…

A: They were on the video, if you look at the video, they were on the videos.

Q: And, we've watched videos, Sir, and they're of you, videotaping Leanne and Billy-Jo in your room, not vice-versa?

A: Ya.

Q: So, what are you telling us? How are they videotaping you if you're the one holding the camera?

A: I was holding the camera and it was on a [sic] automatic video. If you look at most cell phones they got automatic videos on it.

Q: So your saying they set it up, put it in your hand and then they ran off?

A: They were right there actually. Because they were all hanging out together. Because we were taking the pictures of them celebrating the birthday.

Q: So you're not suggesting Leanne and Billy-Jo, stayed in the room and videotaped you masturbating?

A: Yes, they stayed.

The prosecutor played the video recording of the defendant masturbating and it appeared that the defendant was holding the phone to record himself while nobody else seemed to be present.

[59] This was not the only area where I had difficulty accepting the truth of the defendant's evidence because of its fluctuating nature. The defendant's testimony about when he told Sergeant Ullock about Chris' flip-phone on the TV was equally variable and inconsistent over the course of his complete testimony. Overall, I find that the defendant's answers were not consistent, they were contradicted by other witnesses in material respects, and they were often completely implausible.

[60] As well, at times, the defendant was flippant during his cross-examination. However, I cannot imagine the defendant's stress while testifying on his own behalf, and I attribute his attitude to testimonial fatigue more than anything else.

[61] In the end, I cannot reconcile the defendant's lie to Sergeant Ullock that he did not know Christian's last name. I conclude that the defendant said this to bolster the lie that Chris was another friend whose surname he did not know. This crucial misstatement (the defendant did not know Christian's last name), in the context of the defendant's unsatisfactory testimony as a whole, causes me to doubt that Chris actually exists or to accept that Chris is the person responsible for committing these crimes.

Mireille Francis – Defendant's Friend Who Knew Chris

[62] Ms. Francis testified last. She testified that she was a fraud investigator who knew the defendant since October 2015. She testified that she gave a ride to a friend of the defendant's named Chris in April 2016. Ms. Francis said that she had met the man with the defendant at Starbucks and he needed a lift. She remembered his height, build, name, and the fact that he was stinky, but she had no explanation for why she remembered him at all.

[63] I am somewhat suspicious of Ms. Francis' evidence. Ms. Aldridge admitted that she had lied to the police at the defendant's request. Ms. Jussila admitted that the defendant asked her to word things differently if she were questioned by the police. I accepted that these accounts were true. This pattern of behaviour and the generally unsatisfactory nature of the defendant's evidence created some small doubt in my mind about this witness' reliability.

[64] However, in the final analysis, I do not need to reject Ms. Francis' evidence as untruthful. This evidence was unhelpful to corroborate the defendant's testimony. Ms. Francis' testimony only establishes that the defendant knew someone in April 2016 named Chris. Unfortunately, Ms. Francis admitted that she did not know how many friends by that name the defendant had. Strangely, the defendant never testified that Ms. Francis gave a ride to the same Chris who had used both the Samsung and LG phones to access and possess child pornography, so I am unable to conclude that they were one and the same person.

THE APPLICABLE LAW

[65] As always, a burden rests upon the prosecution to satisfy the court that the allegations and all necessary elements of each offence have been proven beyond a reasonable doubt. If the prosecution fails in any respect, the defendant is not the beneficiary of some privilege, but with the failure to displace the presumption of innocence beyond a reasonable doubt, he must be acquitted and restored to his pre-charge status.

[66] In assessing the credibility of the witnesses in this case, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D., as applied by subsequent cases and explained by academic commentary:

i. I cannot properly resolve this case by deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt, and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.

[67] Reasonable doubt lies much closer to proof to an absolute certainty than it does to proof on a balance of probabilities.

[68] The two essential elements of the offence of possession are knowledge of the presence of the item and control over the item. Possession can involve actual (or personal) possession, constructive possession, or joint possession of the item by more than one person, with the other's consent. This case involves actual possession. I need to be satisfied beyond a reasonable doubt that the defendant knew of the existence of the child pornography on either or both of the 2 phones found in his bedroom and he exercised a measure of control over the child pornography.

[69] I have rejected the defendant's evidence that Chris accessed the child pornography and downloaded this material onto the two phones found in the defendant's bedroom without his knowledge. But even if I had accepted this evidence, I would still reject the defendant's evidence that he had no knowledge of the child pornography found on his LG phone. The LG cell phone contained 3 child pornographic videos and 833 illegal still images. There were only 37 other videos created by the defendant which were contained on this phone. The defendant testified that he had owned the phone for about 5-6 months until it was seized by the police. This is a significant amount of child pornography, of which to have been completely ignorant. The defendant has admitted holding the phone, taking photographs, and creating videos. I find it highly implausible that the defendant never saw any of the images or videos containing child pornography on a phone he possessed and used daily for six months. Moreover, I would have to completely ignore Ms. Jussila's testimony about the photographs the defendant texted her, and their conversation about photographs of naked pubescent children, evidence which I accept, to conclude that the defendant had no knowledge of the child pornography which was found on his LG phone.

[70] I have considered whether the rejection of the defendant's evidence leaves me in a state of reasonable doubt. My rejection of his evidence is certainly not positive evidence from which I can determine guilt. I find that I am not left in a state of uncertainty or reasonable doubt about the defendant's guilt. I accept Ms. Jussila's evidence that the defendant role-played and fantasized about having sexual relations with children. I find that this evidence is circumstantial evidence that assists me to determine who downloaded the child pornography onto the Samsung and LG phones. The sexual role-playing and requests, and the use of child pornography in on-line discussions with Ms. Jussila are such unique events that they assist me to find that the defendant used the two cell phones found near his bed to search for and obtain child pornography in order to stimulate and satisfy his professed sexual interest in children. I also find that the defendant has some mobility in his fingers and hands, and he has adapted a way to operate a cell phone by using his knuckle to type text messages or access the internet.

CONCLUSION

[71] On all of the evidence which is accepted by me, I find that the prosecution has satisfied me beyond a reasonable doubt that the defendant accessed child pornography, possessed child pornography, and in an email sent on 22 September 2015 he attempted to distribute child pornography.

[72] Lastly, the defendant lied to Sergeant Ullock to divert suspicion away from himself and toward someone named Chris who, if he even exists, had nothing to do with these offences. In so doing, he obstructed the officer in the course of his investigation. Again, I have come to this conclusion not on the basis of my rejection of the defendant's evidence, nor as a consequence of this rejection, but rather because I am satisfied of the defendant's guilt beyond a reasonable doubt on the basis of the evidence I do accept. Neither Ms. Aldridge, Ms. Jussila, nor Ms. Spencer had ever seen or met the defendant's friend named Chris, despite the defendant's claims that Chris was a regular guest at his residence. The defendant's testimony that Ms. Jussila knew Chris is completely undermined by my finding that she never knew Chris. Accordingly, I conclude that the defendant unlawfully implicated Chris to Sergeant Ullock solely to thwart the investigation in aid of avoiding liability for these offences.

[73] I find Burton Boodram guilty of all four offences as charged.

Released: 11 January 2018

Justice G. Paul Renwick