Court File and Parties
Ontario Court of Justice
Date: October 31, 2019
Court File No.: Ottawa 18-R2021
Between:
Her Majesty the Queen
— and —
Christopher Allan Jones
Before: Justice Julie I. Bourgeois
Counsel:
- Ms. S. Goldfarb, counsel for the Crown
- Mr. A. Brass, counsel for the defendant
Reasons for Judgment
BOURGEOIS J.:
I. Introduction
[1] Mr. Christopher Jones is facing a total of six counts. In chronological order, he is charged that:
between December 25, 2017 and January 17, 2018, he possessed child pornography in the form of images, contrary to s. 163.1(4) of the Criminal Code;
between December 29, 2017 and January 16, 2018 he accessed child pornography in the form of images, contrary to s. 163.1(4.1) of the Criminal Code;
between January 29 and February 20, 2018 he accessed child pornography in the form of images, contrary to s. 163.1(4.1); and
on June 27, 2018 he breached his Undertaking entered before a justice by failing to comply with the following conditions:
- Not to possess a computer, cell phone, or electronic device capable of connecting directly or indirectly to the Internet, or any other electronic networks;
- Not to attend inside any places where access to the Internet, or other electronic networks are available, directly or indirectly, to the public for free or a fee; and
- Not to possess or access any images or videos of children who are depicted to be, or appear to be, under the age of 18 years old, or naked, or portrayed in a sexual manner; and finally
on June 27, 2018 that, for a sexual purpose surreptitiously observed by making a visual recording of a child who was in circumstances that gave rise to a reasonable expectation of privacy, contrary to s. 162(1)(c) of the Criminal Code.
[2] The allegations can be summarized as follows: On January 17, 2018, Mr. Jones attended the Loblaws located at 2121 Carling Ave. He used his cellphone inside the store and left it on a shelf. An employee of the store found it. As he was trying to identify the owner of the phone, he saw images in the photo gallery and decided to bring it to the store manager. The police was called and the cellphone was turned over to the police. An investigation was launched and ultimately, images deemed to be child pornography were located on the cellphone. The images were alleged to be of young females ranging from prepubescent to young teenage (5 to 14) years. A website containing child pornography is also alleged to have been accessed and images of child pornography are alleged to have been accessed and downloaded through such a website. Mr. Jones was identified as the owner and user of that cellphone. He was charged and released before a justice with conditions as indicated in the counts.
[3] On June 27, 2018, Mr. Jones attended the Carlingwood Mall food court located at 2121 Carling Ave. Using his cellphone, he was witnessed allegedly filming a young female child in the food court. The witness informed the mall security who in turn called police. Mr. Jones was arrested in relation to the breaches allegations, his cellphone was seized and later analyzed and images determined by the police to be child pornography were located as having been accessed. Mr. Jones was arrested and charged accordingly.
[4] A list of admissions was filed as exhibit 1 and can be summarized as follows:
The 2 cellphones are in Mr. Jones' name at all relevant times.
The dates, jurisdiction and validity of the Undertaking to justice are admitted. The Undertaking to justice was filed as exhibit 2.
Both video surveillance, from the Loblaws and the Mall food court are admitted as authentic and accurate. They were also filed as exhibits.
It is admitted that Mr. Jones is the person depicted on those videos at the relevant time.
It is admitted that 18 photographs or images located on the 1st cellphone seized by the police constitute pornography.
It is admitted that 6 photographs or images located on the 2nd cellphone seized by the police constitute pornography.
The qualifications of both Det. Lorentz and Det. Villeneuve as officers in the Computer Forensic Unit of the Ottawa Police Service (OPS) are admitted. At the time of trial, Det. Lorentz was no longer employed by the OPS but was working in the same field but for a private company.
The continuity of both cellphones from the time police seized them is also admitted.
[5] The defence on behalf of Mr. Jones, in general terms, is to the effect that the Crown did not prove beyond a reasonable doubt that Mr. Jones was in possession of the impugned material; that he was the one accessing such material or that the downloading of the impugned material was accidental.
II. The Law
A. Definition of "Child Pornography"
[6] Even though it is admitted that some images found on both cellphones meet the definition of child pornography, an overview of the definition of what constitute child pornography is required to assist us in understanding the elements of the offences of possession and of accessing child pornography, contrary to s. 163.1(4) and 163.1(4.1) of the Criminal Code.
[7] "Child pornography" is defined under para. 163.1(1) of the Criminal Code as:
163.1 (1) In this section, child pornography means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
[8] Even though visual representation or written material can constitute child pornography in more than one way, s. 163.1(1)(a)(ii) is the relevant definition at the heart of this matter as Mr. Jones is charged in relation to images of child pornography.
[9] S. 163.1(4) makes it an offence to possess any such material and s. 163.1(4.1) makes it an offence to access any such material.
[10] C.J. McLachlin, as she then was, writing for the majority in R. v. Sharpe, 2001 SCC 2 at para. 34 explained Parliament's main purpose in passing this legislation was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a message to Canadians "that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners." Mindful of constitutional freedoms and values, Parliament set this legislative target on "material that poses a reasoned risk of harm to children not outweighed by the freedom of expression or the public good."
[11] C.J. McLachlin summarizes, at para. 72:
Section 163.1(4) of the Criminal Code evinces a clear and unequivocal intention to protect children from the abuse and exploitation associated with child pornography. It criminalizes the possession of a substantial range of materials posing a risk of harm to children. (...) Visual material depicting children engaged in explicit sexual activity is caught, as is material featuring, as a dominant characteristic, the sexual organ or anal region of a child for a sexual purpose. (...) As a result, the law appears to catch a substantial amount of material that endangers the welfare of children.
[12] Of course, the Supreme Court of Canada emphasized the aim of legislation in catching visual representation where the feature is of sexual organ or anal region as a "dominant characteristic" for a sexual purpose and not the innocent photo of children kissing or hugging or baby in the bath in the family album.
[13] In this regard, C.J. McLachlin discussed the term "dominant characteristic" and "for a sexual purpose" found in that definition at para. 50 and 51.
[50] The objective approach should also be applied to the term "dominant characteristic" in s. 163.1(1)(a)(ii), which targets possession of visual material whose "dominant characteristic" is "the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years". The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region. The same applies to the phrase "for a sexual purpose", which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.
[51] Family photos of naked children, viewed objectively, generally do not have as their "dominant characteristic" the depiction of a sexual organ or anal region "for a sexual purpose". Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer: see R. v. Hurtubise, [1997] B.C.J. No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the "dominant characteristic" of the picture is a depiction of the sexual organ or anal region "for a sexual purpose". If there is a reasonable doubt, the accused must be acquitted.
[14] The test in assessing the material is an objective one and the objective approach applies to both the "dominant characteristic" and the "sexual purpose" and the material is to be assessed contextually.
[15] We also know from para. 43 that the "depiction" means how the visual representation is seen to depict by a reasonable observer, not as it was intended to be viewed by the maker and not how it is perceived by the possessor. C.J. McLachlin explained it in these terms:
It is the meaning which is conveyed by the material which is critical, not necessarily the meaning that the author intended to convey. Moreover, it would be virtually impossible to prove what was in the mind of the producer or possessor. On the second alternative, the same material could be child pornography in the possession of one person and innocent material in the hands of another. Yet the statute makes it an offence for anyone to possess such material, not just those who see it as depicting children. The only workable approach is to read "depicted" in the sense of what would be conveyed to a reasonable observer. The test must be objective, based on the depiction rather than what was in the mind of the author or possessor.
[Bold emphasis added]
[16] Recently, our Court of Appeal for Ontario in R. v. M.B., 2019 ONCA 237, confirmed the application of the test set out by our Supreme Court of Canada in Sharpe: in considering the images, the trial judge must apply the objective approach to determine whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the [children's] sexual organ or anal region" for a sexual purpose. (para. 9).
[17] The Court of Appeal for Ontario in R. v. Rowe, 2011 ONCA 48, at para. 2 had also concluded that for the purpose of s. 163.1(1)(a)(ii), a child's "sexual organ" or "anal region" did not have to be "exposed" in an image to constitute a "depiction" of an image of child pornography.
[18] That case also illustrates that nudity is not a prerequisite to the determination of child pornography. In other words, the depiction of sexual organs or anal region of the children as the dominant characteristic for a sexual purpose does not require the sexual organs or anal region to be nude to fit the definition of child pornography.
[19] J. Mackay, at para. 11 to 14 and 28 in R. v. Ramlogan, 2019 ONCJ 473, also summarized this point of law and provides examples of situations where images of children wearing clothes were still found to be child pornography. In doing so, reference was made to R. v. Rudiger, 2011 BCSC 1397; R. v. Schacter, 2018 ONCJ 371, R. v. Wanamaker, [2011] A.J. No. 516 (Alta. Q.B.) and R. v. Meikle, [2011] O.J. No. 4151. The examples provided in that case of "dominant characteristic" and for a "sexual purpose" can be summarized as follows:
compelling evidence of a "dominant prurient purpose" depiction of a child who is not naked;
partially clothed child in underwear or "scantily clothed" or wearing a wet bathing suit or translucent material undergarment revealing the child's sexual organs or anal region or the focus of a video on the cleavage of a child's clothed buttocks;
the position of the child for example "with her legs splayed" or a female child helping another taking her top off found amongst other photos of naked girls, one displaying her naked sexual organs;
clothed children but in sexualized poses with the legs spread, the hips thrust out towards the camera in a provocative manner or on their hands and knees with the buttocks spread, the focus of the camera being on the genital or anal area or in a manner that is meant to direct the viewer's eye to those areas.
[20] Mackay, J. also referred to the factors Thorburn, J. in R. v. Way, 2015 ONSC 3080 at para. 58, considered in determining the dominant characteristic depicted in images or movies. They can be summarized as follows:
the number of images of the sexual organs or anal region
the characteristics of the images, including:
- the clarity of the image
- the proximity of the sexual organs or anal region to the camera
- the duration of the depiction
- the angle and/or zooming of the camera on the sexual organs or anal region
- the deliberate intention to focus on the sexual organs or anal region
- captions or other methods used to highlight the sexual organs or anal region
the context in which the images are taken, including:
- the significance of the images as a whole, including the story line, if any, the visual representation of it or its music if in a film or movie
- the apparent purpose of the depiction of the sexual organs or anal region
- the context of the collection as a whole, if part of a larger collection.
[21] The Court of Appeal, in M.B., supra, at para. 11, listed the elements considered in its analysis:
the shape of the children's sexual organs and anal regions through the indentation of their diapers was clearly visible in many of the images;
children were posed in a sexualized manner;
female child's pre-pubescent breasts were visible while clad in a diaper and posed in a sexualized manner across a bed;
all the children were under 18 but beyond the age of children who ordinarily wear diapers;
the principal focus of the photos is the depiction of the children's diapered groin area;
one image was of a male child's naked buttocks and sexual organs during a diaper change
given the image's primary visual emphasis and its placement among the other pornographic images, this photo could not be viewed objectively as a "family photo" but rather assumed from this context the dominant characteristic of the depiction of the child's sexual organs and anal region for a sexual purpose as explained at para. 51 in R. v. Sharpe.
[22] There can certainly no longer be any question as to whether nudity is required to conclude to a depiction meeting the definition of child pornography. This legal question has now long been discussed by various levels of courts and ought to be considered resolved. (R. v. Sharpe, supra; R. v. Rowe, supra; R. v. Rudiger, supra; R. v. Shacter, supra; R. v. Meikle, supra; R. v. Wanamaker, supra). It is also clear from the same case law that "sexual organ" or "anal region" means just that. A "sexual organ" is the vagina, vulva, penis or breasts, whether developed or not. The "anal region" is the anus or the region, which is the buttocks (see particularly Rudiger, supra and Meikle, supra on this point).
[23] The Court of Appeal in R. v. M.B., supra, further explained at para. 13:
In Sharpe, while advocating a "restrained" interpretation, the Supreme Court also cautioned against fixing the "precise content" of the kinds of depictions that are caught under the definition of "child pornography". We agree with the prudence of this approach, given the myriad different depictions that may constitute "child pornography". A trial court's analysis of which depictions fall under the definition of "child pornography", including under s. 163.1(1)(a)(ii) of the Criminal Code, necessarily remains a fact and context-driven exercise, which, absent error, is entitled to deference from an appellate court.
B. Definition of "Possession" and "Accessing"
[24] Possession of and accessing child pornography are two separate offences. As per the Criminal Code, those offences are punished under s. 163.1(4) and (4.1) respectively:
Possession of child pornography
(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
[25] S. 4(3) of the Criminal Code describes the element of possession of anything in these terms:
Possession
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;
[26] S. 163.1(4.2) of the Criminal Code describes the element of accessing child pornography in these terms:
Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
[27] Fish, J., for the majority in R. v. Morelli, 2010 SCC 8, clearly explained the distinction between the two offences and the importance of keeping these offences conceptually distinct. He explained:
[14] In my view, merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1(4.1) of the Criminal Code.
[15] For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
[16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.
[bold emphasis added]
[28] In explaining the application of the traditional law of possession to virtual objects, the Supreme Court of Canada explained the distinction between the "objects" that are said to be in possession, such as images stored as digital files ("the digital information encoding the image — the image file") in ones computer and the distinction with the images displayed on ones computer monitor. This distinction is important to understand when dealing with the offence of possession of child pornography and the offence of accessing child pornography.
[29] In explaining the offence of possession the Fish, J, at para. 19 stated "[...] possession of an image in a computer means possession of the underlying data file, not its mere visual depiction." He provided three appellate decisions illustrating this point (R. v. Panko (2007), 52 C.R. (6th) 378 (ON SCJ), possession might be established by icons on the desktop pointing to illegal images stored on the computer's own hard drive; R. v. Weir, 2001 ABCA 181, confirming the validity of a search warrant for prohibited images attached to an e-mail message received but not yet opened by the accused by leaving a reasonable inference that the files would have already been downloaded onto the accused's computer at the time the warrant was authorized; R. v. Daniels, 2004 NLCA 73, possession begins at the moment the accused begins downloading the illegal image files to his hard drive, even though it was interrupted and the images were never viewed.). At para. 24, Fish, J. noted that in each of these cases "the object illegally possessed by the accused was the image file, not a visual display or rendering of the image."
[30] After reviewing these appellate cases of possession, Fish, J. further explained the distinction between the possession and the accessing of child pornography at para. 25 to 27:
[25] This is a sensible interpretation for a number of reasons. First, and most important, because Parliament, in s. 163.1(4.1) of the Criminal Code, has made accessing illegal child pornography a separate crime, different from possession. In virtue of s. 163.1(4.2), a person accesses child pornography by "knowingly caus[ing the] child pornography to be viewed by, or transmitted to, himself or herself".
[26] Parliament's purpose in creating the offence of accessing child pornography, as explained by the then Minister of Justice, was to "capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic" (Hon. Anne McLellan, House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, at p. 3581).
[27] What made a charge of possession "problematic", of course, is that possessing a digital file and viewing it are discrete operations — one could be criminalized without also criminalizing the other. In the case of child pornography, Parliament has now criminalized both. But viewing and possession should nevertheless be kept conceptually separate, lest the criminal law be left without the analytical tools necessary to distinguish between storing the underlying data file and merely viewing the representation that is produced when that data, residing elsewhere, is decoded. (...)
[31] In summary, to prove possession the Crown is required to prove beyond a reasonable doubt that the accused person had: i) knowledge of the physical custody of the image file and of the criminal character of the content of the image file and ii) control over the image file (Morelli, supra, para. 16). This issue of knowledge and control and its application to a charge of possession of child pornography is also discussed in R. v. Chalk, 2007 ONCA 815. There is no need to discuss constructive possession in this case but both Morelli and Daniels, supra, review the law and its application in cases of possession of child pornography.
[32] But to be clear and to further demonstrate the importance of keeping the offences of possession and accessing distinct from one another, to prove possession, it is sufficient for the Crown to prove possession strictly as discussed above but it is not necessary in doing so to prove that the accused viewed or accessed the image files. The Crown can prove the possession by proving the accused had knowledge of the nature or content of the image file and had the intention to possess it and the necessary control over it. (see R. v. Daniels, supra, content of files graphically described and requested to the system operator clearly demonstrated proof of knowledge of the content or nature of the content; in that case simply starting the downloading but aborting the process before the completion of the downloading of the requested image files was sufficient proof of control in the context of constructive possession.)
[33] The means of proving these elements, as in any other criminal cases, can be by direct or by circumstantial evidence and usually by computer forensic evidence. R. v. Daniels, above is a good example of circumstantial evidence in proving knowledge by file names or search terms that are graphically descriptive. Another indicator or piece of evidence available for consideration in concluding or drawing an inference of knowledge is the quantity of material (image files) downloaded or found on the computer (R. v. Donnelly, [2010] B.C.J. No. 1813 (S.C.); R. v. Leask, 2013 BCSC 653 in this case, evidence of bulk downloading over a 1 hour span, the majority of material was child pornography files, the quantity was circumstantial evidence of knowledge of the nature of the material downloaded in bulk).
[34] In proving knowledge and control through personal possession of digital files, the existence of the file on the accused computer or cellphone is circumstantial evidence the Crown can rely on (R. v. Braudy, [2009] O.J. No. 347 (S.C.), para. 47). As in any other case, the weight of circumstantial evidence will be dependent on elements such as the ownership of the computer or cellphone; usage or accessibility of the computer or cellphone to others. In other words, can the Crown place the accused person behind that computer or cellphone at the time the impugned material is downloaded (or accessed in the case of the offence of accessing child pornography) is the ultimate question on this point. Where the Crown can demonstrate that the accused has exclusive use of the computer or cellphone by ruling out other potential users, the court can infer control over the impugned files (R. v. Caza, [2012] B.C.J. No. 842 (S.C.)).
[35] To be clear, the offence of accessing child pornography is one of general intent. The Crown must prove the following:
(i) that the impugned material is child pornography;
(ii) that the accused person intended to view or have the pornography transmitted him/herself;
(iii) that the accused knew the nature or content of the material; and
(iv) that the accused viewed the child pornography or caused it to be transmitted to him/herself.
[36] The manners to prove these elements can also be through direct or circumstantial evidence and this can include:
(i) visiting the same websites multiple times;
(ii) entering search terms into a search engine that are indicative of a search for child pornography through its graphically descriptive or otherwise known terminology (ex: "pthc" for pre-teen hardcore; or the series named "Lolita").
[37] The circumstantial evidence of accessing child pornography is often presented through forensic computer evidence showing temporary Internet files found on computer or cellphones showing images or video files containing child pornography material.
[38] Counsel on behalf of Mr. Jones, correctly warns and cautions the court in relation to circumstantial evidence. In doing so, counsel brought R. v. Griffin, 2009 SCC 28, to the court's attention. In relation to the combination of the concept of proof beyond a reasonable doubt and circumstantial evidence, Charron, J, confirmed, for the majority in R. v. Griffin, at para. 33 that "[t]he essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty." She also reinforced the point at para. 35 that "(...) no one argues that the jury should be entitled to base its decision on irrational or unreasonable inferences."
[39] The element of circumstantial evidence and reasonable inferences to be drawn from it was also discussed more recently and specifically in a case of child pornography in R. v. Villoraman, 2016 SCC 33. Cromwell, J. in that case reviewed the Hodge's Case in relation to circumstantial evidence and reminded us, at para. 26 and 27:
[26] [...] There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge's Case. He noted the jury may "look for — and often slightly . . . distort the facts" to make them fit the inference that they are invited to draw: p. 1137. [...]
[27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described — the danger of jumping to unwarranted conclusions in circumstantial cases — remains real.
[40] Cromwell, J. clearly explains the application of circumstantial evidence and the drawing of inferences in the context of the burden of proof, at para. 35 to 38:
[35] [...] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[36] I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394, at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[38] Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
C. Voyeurism
[41] This offence is described in s. 162(1) of the Criminal Code:
Voyeurism
162 (1) Everyone commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
[42] This is a specific intent offence. Subparagraph 162(1)(c) is at the heart of this matter. The Crown must prove that the observation or recording was done for a sexual purpose. The test to determine the question of "for a sexual purpose" is an objective one. As discussed in Sharpe, supra at para. 50, 51: would a reasonable observer perceive the recording as intended to cause sexual stimulation to some viewers? And as discussed earlier, no nudity is required, the totality of the evidence and its context is to be considered.
[43] More specifically, the Supreme Court of Canada recently discussed the issue of "circumstances that give rise to a reasonable expectation of privacy" in R. v. Jarvis, 2019 SCC 10. In that case, a teacher was surreptitiously recording, using a camera hidden in a pen, overwhelmingly focusing on female high school students' breasts and cleavage. All the students are clothed and in various locations of the school such as classroom, computer lab, hallway or cafeteria or school premises; none consented to be filmed and none were aware they were being filmed.
[44] Wagner, C.J.C. for the majority, wrote at para. 28:
In my view, circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry into whether a person who was observed or recorded was in such circumstances should take into account the entire context in which the impugned observation or recording took place.
[45] He then provides a non-exhaustive list of considerations to determine whether a person was observed or recorded "in circumstances that give rise to a reasonable expectation of privacy":
(1) The location the person was in when she was observed or recorded.
(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording.
(3) Awareness of or consent to potential observation or recording.
(4) The manner in which the observation or recording was done.
(5) The subject matter or content of the observation or recording.
(6) Any rules, regulations or policies that governed the observation or recording in question.
(7) The relationship between the person who was observed or recorded and the person who did the observing or recording.
(8) The purpose for which the observation or recording was done.
(9) The personal attributes of the person who was observed or recorded.
[46] The Supreme Court discussed the relationship between the elements of the offence of "for a sexual purpose" and "surreptitiously" to be proved beyond a reasonable doubt in s. 162(1)(c) and elements of consideration (purpose and manner of the observation or recording) and explained the appropriateness in considering those elements in the analysis at para. 32 and 33:
[32] The fact that it is an element of the offence in s. 162(1)(c) that observation or recording be done for a sexual purpose does not make it inappropriate to consider the purpose of the observation or recording in assessing whether it was done in breach of a reasonable expectation of privacy, as required by s. 162(1). In the context of this latter inquiry, purpose is only one non-determinative factor to be taken into account along with other relevant circumstances. By contrast, sexual purpose, as an element of the offence in s. 162(1)(c), must be established beyond a reasonable doubt for the offence to be proven. In some cases, depending on the entire context, observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1) will not be made out. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
[33] Similarly, although the surreptitiousness of the observation or recording is an element of the offence in s. 162(1), this does not mean that it can never be considered in assessing whether the person who was observed or recorded had a reasonable expectation of privacy. For example, the fact that a person chose to be secretive about recording another person in a particular situation may support the conclusion that the recording was contrary to the norms regarding privacy and visual recording that exist in that context. However, as with the purpose of the observation or recording, surreptitiousness will only ever be one consideration, among many, to be taken into account in assessing reasonable expectations of privacy; it cannot be allowed to overwhelm the reasonable expectation of privacy analysis. It is possible under s. 162(1) for observation or recording to be done surreptitiously but not in breach of a reasonable expectation of privacy. Conversely, observation or recording that is done openly may breach reasonable expectations of privacy, though because it is not surreptitious, it will not constitute an offence under s. 162(1).
[47] In considering the general sense and ordinary use of the word "privacy", the majority of the Supreme Court of Canada concluded that a person still retains an expectation of privacy in a public place (para. 36 to 38). The Supreme Court provided a number of examples to explain the various level of privacy and expectations therein at para. 39 and 40 (in a change room at a public pool; in a public park; on public transit or breastfeeding in the corner of a coffee shop) and summarizes at para. 41:
These examples illustrate that "privacy," as ordinarily understood, is not an all-or-nothing concept. Furthermore, being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, these examples indicate that whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include a person's location; the form of the alleged invasion of privacy, that is, whether it involves observation or recording; the nature of the observation or recording; the activity in which a person is engaged when observed or recorded; and the part of a person's body that is the focus of the recording.
[48] The concept of "reasonable expectation of privacy" was also discussed under the heading "(d) Broader Legal Context", discussing it in relation to s. 8 of the Charter and its jurisprudence (para. 54 to 70). But specifically, in this context, at para. 62, the Supreme Court explained:
[...] As this Court has recognized in the context of child pornography, where a photo or video represents sexual exploitation of a person, that person may be harmed for years following its creation by the knowledge that it "may still exist, and may at any moment be being watched and enjoyed by someone": R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92, per McLachlin C.J.; see also paras. 164, 189-90 and 241, per L'Heureux-Dubé, Gonthier and Bastarache JJ. This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.
[49] Wagner, C.J.C. also discussed the purpose and object of s. 162(1) in the analysis of the reasonable expectation of privacy analysis and concluded at para. 52:
The fact that an important aspect of the purpose of s. 162(1) is to protect individuals, especially vulnerable individuals, from sexual exploitation militates against the narrow reading of the phrase "circumstances that give rise to a reasonable expectation of privacy" urged by Mr. Jarvis, and the one adopted by the majority of the Court of Appeal. As I have explained above, concluding that a reasonable expectation of privacy can arise only when a person is in a traditionally private or quasi-private place from which she can exclude others would leave a vanishingly small role for para. (b) and entirely negate para. (c) of s. 162(1) — the paragraphs that are most explicitly concerned with behaviours that impact on sexual integrity.
[50] All of these discussions in relation to the concept of privacy and the purpose and object of s. 162(1) are also to be understood in the context of the new, accessible and widespread technologies our society is evolving in.
III. The Analysis
[51] The credibility of the evidence presented by the Crown is not contested and I agree all witnesses presented by the Crown were genuinely truthful. The analysis ought to be in relation to the reliability and sufficiency of the evidence. Specifically, the position of counsel on behalf of Mr. Jones is whether the evidence of each witness individually is reliable and whether the evidence as a whole is sufficient to prove each element of each count beyond a reasonable doubt.
When considering the nature of the evidence in relation to this case and the position of counsel on behalf of Mr. Jones, three main points or arguments are identified in relation to the counts referring to child pornography:
the integrity of the data on each cellphone;
the identity of the person downloading or accessing the impugned material and the voluntariness rather than the accidental or bulk downloading;
the sufficiency or lack of evidence to prove the impugned material meets the definition of child pornography.
1. The Integrity of the Data on Each Cellphone
[52] In relation to the evidence of the civilian witnesses, counsel points out that some discrepancy was evidenced in relation to where the cellphone found on the shelf of the grocery store was placed while awaiting the store manager's arrival in the morning or the manner in which the phone was turned over by the store manager to the police officer at the store.
[53] As indicated earlier, this argument is not to question the credibility of the witnesses but rather the reliability of their evidence and more particularly in relation to the integrity of the data of the cellphone. Counsel for Mr. Jones points out the importance of protecting the integrity of the data gathered from the cellphones and analyzed by the computer forensic officers. There are two folds to this argument. The first one is the protection of the integrity of the data as it was being handle and stored by the witnesses prior to the analysis by the police and the second one is the protection of the integrity of the data during the extraction and analysis of the data by the police.
[54] Both folds can be answered similarly. The forensic analysis of the data retrieved from both cellphones is an important and central piece of evidence in this case. I will discuss it more in a moment but it positively shows that the data was not altered inadvertently or by exterior forces such as a virus or a third party remotely handling the cellphones as suggested by counsel for Mr. Jones.
[55] Firstly, in relation to the cellphone located at the grocery store in the Carlingwood Mall, the Samsung Galaxy S7, all civilian witnesses who had access to that cellphone, the morning of January 18, 2017, testified that they did not access the Internet or downloaded anything from the Internet using the unlocked cellphone. Their evidence is corroborated by the analysis of the expert, Det. Lorentz (as he then was). No activity was found from that cellphone, such as access to or searches on the Internet. The last activities from that cellphone that day are phone calls (in and outbound calls). One outbound call was made by the accused to a number associated to his parents' phone number (see p. 20 of Det. Lorentz' report, exhibit 6A). Indeed, Mr. Jones can actually be observed on the video surveillance filed as an exhibit speaking on that cellphone. A number of inbound missed calls (a total of 7 to be precise) are also registered in the data of the phone (some also from numbers associated to his parents). He is then observed looking at the screen of his cellphone.
a) The Samsung Galaxy S7
[56] Det. Lorentz testified that from his reading of the data extracted from Mr. Christopher Jones' cellphone, the last Wi-Fi connection was at 7:09pm on January 17, 2018 to the Carlingwood Mall Wi-Fi connection where the grocery store is located, while the Wi-Fi connection prior to that was near his residence (see p. 17 to 19 of Det. Lorentz' report filed as exhibit 6A). Det Lorentz also testified and indicated in his report (exhibit 6A, p. 20) that the last browsing or downloading history of any impugned material on the phone predates January 17, 2018.
[57] Cst. Laframboise testified that once she took possession of the cell phone in question (a Samsung Galaxy S7) from the store manager, she communicated with Det. Casimir, from the Investigation of Child Exploitation (ICE) Unit and followed his instruction in placing the cellphone in airplane mode and transporting it to the police station without looking at its content. Still in that airplane mode, she turned it over to Det. Casimir who placed it in a locker to that effect until a search warrant authorized it search and seizure. Det. Casimir testified that the instruction to place the cellphone in airplane mode is to prevent data transmission to the phone. Once the warrant was granted, it was executed. Det. Casimir turned the cellphone over to Det. Lorentz from the Computer Forensic Unit.
[58] There is nothing on this record to allow to conclude or to draw any reasonable inference that the data on the cellphone was compromised by anyone handling the cellphone up to this point.
[59] Now turning to the evidence in relation to the data or its handling once the cellphone was in possession of the police.
[60] Det. Lorentz was qualified as an expert witness in computer forensic but more specifically as a forensic examiner to provide an opinion as to the ownership of the device and verify if the claim of the investigating officer of access and possession of child pornography is accurate. Det. Lorentz qualification and expertise were not contested. Nevertheless, a voir dire was conducted to allow the court to make the determination of admissibility of his evidence as an expert witness. His curriculum vitae was filed as exhibit 5 and speaks in itself of his level of education and experience in the field of computer forensic and forensic examiner. Indeed, Det. Lorentz has since left the police service and was hired by the private software company "Cellebrite". This company created the software he was trained on and used in this case. But more importantly on the issue of the integrity of the data on the cellphone, pages 7 through to 11 of his report are spent describing and explaining computer seizures and examinations, which includes cellular or smart phones; his training, experience and knowledge in this field; and the method of analysis, including its limits and its forensic procedures "so as not to cast doubt upon basic principles such as evidence integrity" (p. 9 of 30 of Det. Lorentz' report, exhibit 6A).
[61] Det. Lorentz extracted the data from the cellphone and prepared a package for Det. Casimir, displaying the data in a readable format for him to review. Det. Lorentz was able to perform both a logical and a physical extraction of the data. The physical extraction, the most comprehensive extraction, was done using the "Cellebrite" specialized software called UFED (Universal Forensic Extraction Device). This software allows the cellphone data in this case to be extracted and decoded into a readable format. Therefore, once that extraction is done, Det. Lorentz created what is called a UFED package allowing Det. Casimir to read the data extracted through a physical analyzer software called S21, that is to be able to view the data, for example, images in this case.
[62] In cross-examination, Det. Lorentz confirmed his understanding of the importance of protecting the integrity of the data so it would not be altered. Indeed, the extraction of the data is the production of a mirror image of the original data so not to risk altering the original file and working from it verified true copy. This process allows for challenging, reviewing or verifying the results or the analysis of this forensic examiner by any other competent forensic examiner.
[63] Det. Lorentz performed a virus scan at the time he performed the physical extraction of the data on the cellphone, on February 5, 2018 and again on the morning he testified, on July 17, 2019. Det. Lorentz found no evidence of virus intrusion or malware in the data of that cellphone.
[64] He also confirmed that an effective way of protecting the data when transporting a seized cellphone is by removing the SIM card or placing the phone on airplane mode. He explained that those methods are to avoid the data being erased remotely through for example the use of the credentials. He gave the example of a user, losing his or her phone and being able to lock it or erase the data remotely. This was obviously not done in this case as the phone was not locked or password protected and the data was not erased as it was extracted.
[65] Also, Det. Lorentz testified that there was no evidence of root access on the device which would have been required to hack into the device. As no root access was found, it therefore strongly, in fact, convincingly suggests there was no such remote access or hacking onto the device.
[66] There can be no doubt Mr. Jones' cellphone Samsung Galaxy S7 was solely used by him. The totality of the evidence, including the process used to extract the data and the forensic analysis of the data performed by Det. Lorentz on this cellphone, allow to conclude there was no interference with the data during the data extraction process or at any time while in the possession of the police, either inadvertently or through a virus or remotely through an anonymous third party. There is no other reasonable inference to be drawn from the available evidence on this record. To conclude otherwise would be unreasonable, speculative and worthy of science fiction. There is absolutely no way to realistically conclude to the probability or even possibility in this case or to draw any inference that a third party could have remotely gained control of the cellphone or access it or its applications or any data. Simply put, the integrity of the data of the Galaxy S7 cellphone, as extracted and as analyzed by the police, was not compromised.
b) The Samsung Galaxy S8
[67] Det. Lorentz performed the extraction of the data from this cellphone. A logical and a system file extraction were done but not a physical extraction. Det. Lorentz explained that the reason for that is because at the time of the extraction, there was no technology yet available for the Samsung Galaxy S8, being the newest version of that cellphone then. Det. Lorentz testified to and briefly explained these types of extractions and their limitations at p. 9 of 30 in his report.
[68] Det. Villeneuve was the expert witness in the field of computer forensics, the forensic examiner, who analyzed the data extracted from that cellphone. Again, his expertise was not in issue and his curriculum vitae and his report were filed as exhibits to the trial. His continued education and training along with his extended work experience with the computer forensic unit of the OPS are undeniably clear why his qualifications and expertise were not contested.
[69] This cellphone was in the hands of Mr. Jones when the police seized it upon his arrest for the allegation of breach of his release conditions. The argument in relation to the integrity of the data of that phone is in relation to manner of transportation after it was seized; the possibility of malware or remotely controlled by a third party or through the handling of the officers during the extraction or its analysis.
[70] Det. Villeneuve explained that the logical extraction is limited to what is actually present or used on the cellphone at the time of the extraction and not the entire memory data as can the physical extraction. This means the logical extraction cannot retrieve, for example, what was deleted manually or automatically from the cellphone (for example, a maximum of 500 entries in the calls log).
[71] He also confirmed that the best practice when transporting a seized cellphone is to remove the SIM card or place it on airplane mode. He also explained, as did Det. Lorentz that the use of a faraday bag is simply to prevent any radio communication from or to the phone, preventing any transmission of data and preventing all data to be swiped remotely. Removing the SIM card or placing the phone on airplane mode can also effectively do this. The data was obviously not swiped, remotely, inadvertently or in any other manner, as the logical extraction provided data for the phone.
[72] In his analysis of the data extracted from this cellphone he observed nothing out of the ordinary suggesting any malware of any type or any remote access or some other means of the phone being manipulated by anyone other than the accused.
[73] As Det. Lorentz had explained, Det. Villeneuve also testified that data, such as images, does not magically appear on a device. Det. Villeneuve explained that even though certain applications on a device can be taken over (for example, when synchronizing the data from one device onto the Cloud, through the Internet), he has never heard of an entire device being taken over remotely.
[74] In conclusion, the totality of the evidence in relation to handling, the logical extraction and the analysis of the Samsung Galaxy S8 cellphone lead to the only conclusion that the integrity of the data was preserved and unaltered from its original state. There is no reasonable inference available to be drawn in relation to any remote access or control of the cellphone or manipulation of the data.
[75] The evidence in relation to the integrity of the data for both cellphone in this case is clear, strong and convincing beyond a reasonable doubt.
2. The Identity of the Person Downloading or Accessing the Impugned Material and the Voluntariness Rather Than the Accidental or Bulk Downloading
a) The Samsung Galaxy S7
[76] Det. Lorentz concluded, through his analysis of the data from the Samsung Galaxy S7 cellphone, that no one other than Mr. Christopher Jones, the owner of the cellphone, used it. Det. Lorentz looked at user accounts; prefilled accounts; emails; applications using emails to sign in; correspondence associate to accounts or applications using those emails; locations of wireless network connections for the device along with interactions between various applications or usage of the device, including content of text messages or even notes (see Det. Lorentz' report at p. 14 to 28).
[77] This circumstantial and computer forensic evidence is of particular convincing weight when considered in its totality. It creates a web of evidence so intrinsically and tightly weaved that it can only lead to the obvious conclusion that Mr. Christopher Jones was the person handling the device when downloading and accessing the impugned material.
[78] All the images, except for the material forming part of the voyeurism charge, regardless of their classification were obtained from the Internet. Mr. Jones is not accused of creating his own pornographic material. To access the Internet, the device needs to be connected to a network. No expert evidence is required to understand this part. The connectivity to a network is part of every Canadian's daily life now, to various level and various accessibility of course but nevertheless, it is now part of our collective and basic understanding. The expert in this case clearly explained how he was able to determine where the device connected to a network and described the activity on the device at that time.
[79] The number of times the device connected for example to the network associated to Mr. Jones' home address coupled with the number of entries in his browsing history (62 368 entries) and the number of entries to a specific website address (53 556 entries to imgsrc.ru) over a period of time ranging from, July 26, 2017 to January 16, 2018 (see p. 20 of 30, exhibit 6A) can only lead to the conclusion that Mr. Jones was behind the device, at those times, over that period of time, from the area of his home. Det. Lorentz was also able to identify images downloaded from the Internet, from that web site specifically (I will address this element in a moment) onto that device.
[80] There is no evidence of bulk or accidental downloading. Indeed, I am not convinced expert evidence is required to understand that downloading of any material from the Internet requires an action by the user. Be that as it may, in this case, Det. Lorentz clearly explained that interaction from the user with the device, while connected to the Internet and on the website imgsrc.ru in this case, for example, lead to a download to a folder location on the device and a screen shot from the photo gallery application on the phone was found containing the impugned material (see p. 20 and 21 of 30 from his report). There is no evidence of any inadvertent bulk downloading, especially when considering the extended period of time over which the downloads took place. But there is evidence of other activities that can only be related to Mr. Jones having the device in hand at that time, such as phone call to his parents or texting or communicating through his Face Book account, within minutes of the downloads. The computer forensic expert provided 5 examples of interactions with the device to lead him to conclude there were no other users then Mr. Jones at p. 24 to 27 of his report. At p. 28 he also specifically turned his mind to other users of the device.
[81] To conclude or to draw any inference of inadvertent or remote bulk downloading flies in the face of the evidence on this record. No such inference is available to be reasonably drawn from this record.
[82] Det. Lorentz was also able to trace back the location of downloaded files from the Internet. He provided an additional report (filed as exhibit 6B) to demonstrate his findings, from the table of browsing history downloads, on the device. This piece of evidence clearly demonstrates the path (the location where the file was saved on the device); the start time (when the file was saved to the device); the received bytes (the size of the file); the referrer (the website where the file came from) and the mime type (the type of file downloaded: an image, a text or a document). The Crown does not need to prove the origin of the impugned material but this piece of evidence assists in understanding the totality of the evidence that Mr. Jones was the sole user of the device but also that he was the user accessing or downloading materials from the specific website.
[83] In Det. Lorentz report, he provided one example of this process to show that on January 16, 2018 at 13:49hrs, Mr. Jones downloaded an image from imgsrc.ru website (see exhibit 6B, the last page of his additional report).
[84] Given the sheer number of times this website was accessed along with the other activities on the device around the time the website (imgsrc.ru) such as the time when the device was connected to the network; the location of the network in relation to Mr. Jones; the communications of Mr. Jones and the timing of those communications in relation to the timing of the access to or the downloads from the website all form part of the very convincing evidence that Mr. Jones is the one who accessed and downloaded the impugned material.
[85] This browsing history alone, that is 53 556 times out of 62 368 entries Mr. Jones was accessing the imgsrc.ru website, as described at p. 19 and 20 of exhibit 6A, is very convincing evidence that Mr. Jones did not accidentally access this website and it is also categorically convincing that he did not accidentally download any material form this website.
[86] There is absolutely no evidence on this record that anything else but the impugned material was downloaded or accessed from this particular website. It is irrelevant that the website in question can be accessed for legitimate purposes. There is no evidence of any Russian recipe or song lyrics for example downloaded from this website by Mr. Jones or any other legitimate purpose to have accessed this website.
c) The Samsung Galaxy S8
[87] Even with a limited possibility to explore further, Det. Villeneuve was convincingly able to determine Mr. Christopher Jones was the sole user of this device. He was able to retrieve personal information from the device such as calendar entries, telephone calls to or from his parents (over half of the total 500 entries available for analysis); text messages, geolocation data with a time stamped photo of Mr. Jones himself, cached in the same location as the impugned material. It is also very convincing that Mr. Jones knew that the impugned material existed on his cellphone as he had to access the same location where the material was stored on his phone to access that photo of himself and send it via text message.
[88] Indeed, there is less information available for analysis on this phone. But the information or the data that is available for analysis, as described in Det. Villeneuve's evidence and report, make it crystal clear that the device was solely used by Mr. Jones and that images forming the subject matter of the charges are stored in the same location on the device as for example a photo he took of himself. Again, the Crown does not need to prove the origin of the impugned images, only that material determined to be child pornography was possessed or accessed. The fact that impugned images were located in the cache of this cellphone, solely used by Mr. Christopher Jones is clearly sufficient, on this record, to prove that Mr. Jones saved and viewed those images on this device. From the analysis of the data, it also appears that some images contain a date and time when the image saved in the content of the Gallery 3d application of the phone and dates back to late January 2018, when Mr. Jones acquired this phone.
[89] Again, as indicated earlier, the images do not simply appear on a device. They are placed there by the interaction of the user with the device. That user is solely Mr. Christopher Jones. All of the impugned material located on this device was found in the cache folder. Det. Lorentz explained that thumbnails are created by the operating system itself to speed up the access to the content. Even though a logical extraction cannot provide the data required to determine the origin of the images found on the thumbnail, the existence of the thumbnail and the cache file allows to conclude that images contained therein were accessed and viewed from that device. The digital file of the image however was not accessible from this logical extraction and therefore there is no evidence that Mr. Jones was in the possession of the material.
[90] In conclusion, when the totality of the evidence is considered, after concluding the integrity of the data has been maintained and no foreign activity has taken place remotely on either of the phones, there is only one conclusion possible: Mr. Christopher Jones is the one downloading images and accessing images found on both phones.
3. The Sufficiency or Lack of Evidence to Prove the Impugned Material Meets the Definition of Child Pornography
[91] Not much time is required to be spent on this point as a number of images were already admittedly child pornography.
[92] Mr. Christopher Jones is charged with possession and accessing child pornography, pursuant to s. 163.1(4) and (4.1) of the Criminal Code. He is not charged with making or distributing child pornography as found in s. 163.1(2) and (3) of the Criminal Code. The fact that there is an absence of evidence in relation to elements of other offences does not render the evidence available on the counts Mr. Jones is facing less reliable or weaker or of less value in assessing the totality of the evidence on the counts before the Court.
[93] Therefore, the absence of evidence of sharing of images or of chat lines in this area or of any other evidence found at Mr. Jones home or computer adds nothing to this analysis and is of no use in the determination of possession, accessing and to the definition of child pornography from the material in question.
[94] Counsel for Mr. Jones during submission compared the analysis to one of a drug case (absence of evidence of paraphernalia or of drugs). As in a drug case however, the Crown does not have to prove the origin of the drugs but rather that it is an illicit drug and that the person was in possession of it, either simple possession or possession for the purpose of trafficking for example. The absence of evidence of trafficking does nothing to the analysis of a charge of simple possession.
[95] Now turning specifically to the evidence of the investigating officer, Det. Casimir.
Much emphasis has been placed by counsel for Mr. Jones as to the discrepancy in numbers obtained from the analysis using the UFED extraction and using the S21 software. Counsel cross-examined both Det. Casimir and Det. Lorentz on this issue. The evidence is clear: the UFED software, even though it has some capability to be used for it, is not meant to be used as a categorizer. The evidence of Det. Lorentz in this point is clear: it is not the best tool to use for the work of categorizing images. But it was one additional tool, not the only tool, available to Det. Casimir at the time he initiated his analysis. Det. Casimir explained that he was trained and actually started using the S21 software in this investigation for the purpose of categorizing the images. Det. Lorentz testified that the S21 software is specifically designed for the purpose of allowing officers to quickly and efficiently categorize large volume material, not only child pornography. In his view, it is by far the best tool to categorize large volume of images such as child pornography. Det. Casimir explained that the categorization was done, by himself, by looking at one image at a time and categorizing that image from categories 1 to 3, 1 being what he considers to be child pornography, 2 being of investigative interest and 3 being everything else (so not child pornography and not of investigative interest). Using the UFED program he categorized and determined that 404 images were of category 1 while using the S21 categorizer program, he categorized and determined that 220 images were of category 1; 9 584 images were determined to be of a category 2 and 11 278 images determined to be of category 3. The complete report prepared by Det. Casimir in relation to the first cellphone, the Samsung Galaxy S7, was filed as exhibit 4.
[96] Simply put, UFED is a program designed to extract the data from the device while the S21 is a program designed to categorize images extracted by UFED from the device. It is not that surprising then to see a discrepancy when two different tools are used to analyze data. S21 does not include the entirety of the data extracted by the UFED extraction program. Rather the UFED extraction is processed through the S21 program and the data is separated so the images and videos for example are extracted from the totality of the data and grouped in the S21 program to then allow the officer to look at all the images in the data extracted. As such, Det. Lorentz explained that even though there can be many factors to explain it, the first explanation that comes to mind to explain the discrepancy in the total number of images from one software to the other is duplication. The hash tag value (the identification of the image) cannot be reliable from the UFED software but when the extracted data is passed through the S21 software, where the reporting capacity is much better and specifically designed to categorize. As I understood the evidence, the same image but downloaded or saved or deleted would have different identification each time such an action was performed in relation to that image. And again, as I understood, the UFED software would capture each of these actions and therefore duplicate the accounting of the same image. However, once the data extracted from the UFED is imputed in the S21 software, it is only the image itself that is captured in the program for categorization. Therefore, one can understand how the same image can be captured more than once in the attempt to categorize the images with the UFED program and thus yielding a different total number.
[97] In the end, the discrepancy in total images from one program to the other is not indicative of a problem or a deficiency in the programs used or in the analysis or the work performed by Det. Casimir. It is simply due to the purpose and manner of operation for each of those programs.
[98] By the time Det. Casimir analyzed the second cellphone, the Samsung Galaxy S8, he was able to use the file Det. Lorentz had prepared from the data from the logical extraction, in the S21 software. His report was filed as exhibit 11. He categorized each of the 3223 images found on that device and determined that 101 were of category 1; 2302 of category 2 and the balance of the images, 819, of category 3. Det. Casimir testified that he mistakenly classified one image of the young female, aged approximately 12 years, in the green shirt, at the Carlingwood mall, as a category 1 when is he should have categorized it as a category 2, as the other 7 or so images of this same young female he viewed on the phone.
[99] On the Galaxy S8, all the images he categorized as category 1 were found to be in the cache folder, a small thumbnail was created by the phone when Mr. Jones accessed the said image. None of the images were saved in the photo gallery. As a result, Mr. Jones was only charged with accessing child pornography from this device and not possession of child pornography.
[100] Now turning to the category 1 images. As indicated earlier, 18 of the 220 images on the Galaxy S7 phone and 6 of the 102 images on the Galaxy S8 are admittedly child pornography. Nevertheless, the Court viewed a sample of 30 other images (none of which were the 24 admitted child pornography images) located on the S7 phone and categorized as child pornography by Det. Casimir. Each and every of those images depicted a female child between the ages of 6 to 12 years; in various state, level or types of clothing; some transparent or allowing to see part of the buttock or the areole or the complete bare breast area; the majority with the legs spread out or the knees up or in a un-natural or sexualized pose but all were focusing on the anal region or sexual organs. All images were photographs taken with the view to attract they eye of the observer to those regions.
[101] All of those images have the common denominator of a dominant characteristic of depicting the sexual organs or anal region of the female child for a sexual purpose as explained by C.J. McLachlin (as she then was) in Sharpe, supra, at para. 50.
[102] To argue that those images are not child pornography but simply "erotica" defies the purpose of the legislation as intended by Parliament and explained by Supreme Court of Canada in Sharpe at para. 34 and 72, above.
B. Conclusion
[103] When considering the totality of the evidence and the applicable law, I conclude that the Crown has met its onus and proved each element of each offence of possession and accessing child pornography and as such I find Mr. Christopher Jones guilty of counts 5, 6 and 7.
[104] Given the evidence of accessing the child pornography from the Internet as evidence in the browser history of the Samsung Galaxy S8 device, the analysis of the data retrieved from it, the evidence of the civilian witnesses as to the availability and accessibility of a network at the Carlingwood Mall, and the admissions made at the outset of the trial, there can be no doubt that Mr. Christopher Jones breached the conditions of his undertaking as described in counts 1, 2 and 3. As such I find him guilty of those counts also.
Count 4 - The Offence of Voyeurism
[105] Mrs. Gerkema testified that while she was in the food court of the mall, she observed Mr. Jones sitting nearby also observed a young female she estimated to be 10 or 11 years old, sitting on the swivel chair with a bright green t-shirt. From where she was sitting, her attention was drawn to the cellphone Mr. Jones had in his hand as she was able to observe the same bright green t-shirt swivelling as the little girl was on doing so on her chair. She obviously concluded that the man was filming the little girl. She observed the man holding the phone as if he was reading from it. She observed him filming during approximately 15 to 20 minutes.
[106] When the child, her brother and her mother finished their meal and left, the man continued to film the child, following her from his seat, with the phone in hands. He did not appear to be filming her brother, two chairs beside her nor her mother when she arrived at the table with the meal. This is all partly observable from the surveillance video at the mall and filed as an exhibit. Mr. Jones is observed arriving in the food court where the young child is already sitting and Mr. Jones sitting at the chair that is allowing him to see this young female child directly. From her location, she was able to see the man looking at the videos he had taken of the child as she could see that bright green shirt swivelling on the chair. She could see him after each video clip, pulling the video down in a red icon on the phone. She observed 10 to 12 squares on the screen of the phone with videos of the girl in the green shirt.
[107] When Mrs. Gerkema realized the man was filming the child, she asked her daughter to advise the mall security as she felt this was wrong and ought not to be happening. Initially she thought he might have been related to the family but once she realized he was not as there was no interaction between them and he did not eat with them nor left with them after dinner and he was filming this young female without the family being aware of it.
[108] Cst. Hartnett responded to this call and attended the mall. He spoke to both the mall security officer and then to Mr. Jones. During the course of his conversation with Mr. Jones, Mr. Jones took his Samsung smart phone out of his pocket, and he observed him deleting a number of videos from his cellphone from which he could see a female child he estimated to be around 14 or 16 years of age wearing a green shirt.
[109] Once he was informed of the existence of the conditions of undertaking, he arrested him in relation to the breach of possessing a device capable of accessing the Internet and seized the smart phone. He also observed his partner, Cst. MacInnis remove the SIM card at a later point once at the station.
[110] Indeed, Cst. Shannon MacInnis testified that after direction from her supervisor, she removed the SIM card using a paper clip she carries on her vest. However, she also testified that while at the mall with Cst. Hartnett and Mr. Jones she did observe the thumbnails, those small squares, on the touch screen of the smart phone. She could not tell if the thumbnails were of photos or videos. She observed Mr. Jones selecting a few and by pressing on each one and she then observed him pressing the delete button at the bottom of the screen.
[111] Given the limited logical extraction of the phone, there is no surprise that the analysis did not reveal any video of this young female with a bright green shirt as it was no longer on the device having been deleted at the mall. But I do accept the evidence of these witnesses and conclude that what Mrs. Gerkema observed was indeed Mr. Jones filming this young child, aged between 10 to 12 years of age.
[112] These thumbnails were found among the thumbnail containing the images of child pornography on that same phone and depicting girls in the same age group as this young female in the green shirt. He surreptitiously filmed her at the food court, without her knowledge. Ms. Gerkema, a member of the public, a complete stranger to Mr. Jones felt the situation inappropriate enough as a mother of two daughters to report the situation to the mall security, as it was unfolding at the time. Mrs. Gerkema did not know what was on Mr. Jones' smart phone at that time but considered the situation she was observing to be indicative of bad intentions towards children and would have wanted someone to do the right thing in that situation if it was happening to her family.
[113] When applying the teachings of our Supreme Court in Jarvis, supra, there can be no doubt the content of the recordings, this young female child being the target of the recording; the absence of a relationship between Mr. Jones and the child (he is a pure stranger to this child); the number of videos taken and immediately viewed after the child left the food court, in the context of the rest of the content found on that same device and on the Galaxy S7 phone, (images of child pornography and of investigative interest of female children in the same age group), all lead to the conclusion that the surreptitious recording of this child was done in breach of her privacy and for no other reason than for a sexual purpose.
[114] I therefore find Mr. Christopher Jones guilty of count 4.
Released: October 31st, 2019
Signed: Justice Julie I. Bourgeois