Court File and Parties

Ontario Court of Justice

Date: 2020-11-18

Court File No.: #19/2693

Between:

Her Majesty the Queen

— and —

Wilfred Kwok

Before: Justice M.K. Wendl

Heard: November 3rd, 4th, 5th and 6th, 2020

Reasons for Judgment Released: November 18th, 2020

Counsel:

• S. Turner, for the Crown
• J. Fera, for the defendant Wilfred Kwok

Judgment

WENDL J.:

Introduction

[1] Wilfred Kwok is charged with possession, accessing and making child pornography available. The charges emanate from the execution of a search warrant at 696 Edinburg Rd. S., Guelph, on August 16th, 2019. This Court must determine if the Crown has proven these charges beyond a reasonable doubt. No Charter violations were alleged, the accused did not testify, and the evidence is circumstantial. Therefore, this Court must decide, in accordance with the Supreme Court's decision in R. v. Villaroman, if the only reasonable inference is that of guilt for Wilfred Kwok.

Facts

[2] In May 2019, the Guelph police Internet Child Exploitation Unit were investigating a Peer to Peer file sharing network suspected of sharing child pornography. A computer with IP address 206.188.85.76 was identified as a download candidate with torrent files of interest.

[3] Detective Constable Lunn accessed an offending image and video from that I.P address on May 1st, 2019. The title of the image was [JulyJailbait.club]1st studio Siberian Mouse sm_111 and the video was 1st Studio Siberian Mouse sm_1.wmv. The IP address was linked to 696 Edinburg Rd. S., Guelph and the registered home owner was Pak-Yuen Kwok, the father of the accused.

[4] Based on the foregoing, a search warrant for child pornography was executed at 696 Edinburg Rd. S. Upon entering the target residence, Detective Constable Lunn was greeted by the accused's father, Pak-Yeun Kwok. Two other people were in the residence, their names were not provided to this Court. Detective Constable Lunn proceeded to search a basement room where he located numerous digital devices, including two computers.

[5] Wilfred Kwok, the accused, was not at 696 Edinburg Rd. S. during the execution of the search warrant. The police, upon seizing the computers and determining that they contained illegal content, attended to his workplace in Milton, a climbing gym, and arrested him.

[6] Police reviewed 26 electronic devices seized from the basement room. On two laptops and four hard drives, the police found a total of 5,652 accessible images and 65 accessible videos. It is conceded by the defence that those pictures and videos meet the definition of child pornography in the Criminal Code.

[7] One of the laptops was password-protected and had the username of "wil" [hereinafter Computer 1]. The other laptop was not password-protected [hereinafter Computer 2] and had the username "wil" as well.

[8] Computer 1 contained 2,355 files of accessible offending material, including the image [JulyJailbait.club]1st studio Siberian Mouse sm_111 and the video 1st Studio Siberian Mouse sm_1.wmv. The image arrived on Computer 1 on May 1st, 2019. It was in a user created folder named "sib". This folder was created on March 18th, 2019 and contained a total of 236 offending images, it also contained 1st Studio Siberian Mouse sm_1.wmv. In addition to that, numerous personal documents relating to Wilfred Kwok were found:

1. Guelph police service record check in the name of Wilfred Kwok dated June 2019
2. T4 statements from the Grotto Climbing Club for 2015, 2016 and 2017
3. T1 general statements for 2015 and 2016
4. Pay stubs between January 29, 2016 and May 20, 2016
5. Service Ontario license plate sticker receipt dated January 2018
6. An Air Canada flight receipt dated May 2018

[9] I note that the T4 statements (which show that the accused works for a climbing establishment), T1 statements and the air Canada flight receipt all have the address where the search warrant was executed, 696 Edinburg Rd. S., as the address for Wilfred Kwok. These items were found executing searches for keywords including "wilfred" and "kwok" separately.

[10] The forensic analysis of Computer 1 reveals that the last time the password was changed was May 2016 and that the user "wil" account was created with the installation of the operating system in April 2016. Only one user account, "wil", was associated with this computer. A prior user account was deleted upon creation of the "wil" account.

[11] As mentioned above, 236 offending images on this computer were in a folder created by the user named "sib". Again, this "sib" folder was created on March 18th, 2018. A total of 12 user created folders containing offending material were located on this device. These folders were created between January 2018 and June 2019.

[12] In relation to Computer 2, the non-password protected one, the user name is also "wil". 2,625 images and videos were located on this device. Right on the desktop, four user created folders containing offending material were located. Also, the VLC media player confirms that offending videos were viewed, and it was confirmed that offending images titled "jailbait" were viewed as well. Again, numerous items relating to Wilfred Kwok were found on this computer:

1. A 2015 T4 statement in the name of Wilfred Kwok
2. Pay stub in the name of Wilfred Kwok, dated between October 2015 until March 2016
3. An undated resume for Wilfred Kwok
4. A hard drive receipt in the name of Wilfred Kwok (the hard drive in the password protected computer)

[13] Once again, I note that the only address associated with Wilfred Kwok on these documents was the location of the search warrant, 696 Edinburg Rd. S.

[14] As noted above, Wilfred Kwok was not in the residence when the search warrant was executed. No one testified that Wilfred Kwok lived there. A photo of a driver's license in the room where the computers were found was provided to the court. The name on the license is illegible to this Court. Detective Constable Lunn claims that he can read the name "Wilfred" on the license and identifies the picture on the license as that of Wilfred Kwok. In looking at the picture and comparing to the accused in front of the Court, the Court cannot determine if the person on the photo is Wilfred Kwok. As a result, and given the dangers of identification evidence, the Court puts no weight on the Constable Lunn's evidence that the driver's license belongs to Wilfred Kwok.

[15] Finally, the room where the offending material was found appears to be a bedroom. The photos of the scene reveal a made bed, but otherwise messy environment, which gives it the appearance of current use. There was a laundry basket with clothes, a messy desk area, what appears to be vitamins on the headboard of the bed, one of the offending computers was plugged into the wall and left on a chair next to the bed. There are ropes and climbing equipment hanging from the ceiling. Clothes were strewn across the floor. There is a full bookshelf and a University degree in the name of Wilfred Kwok in the room as well.

Law and Analysis

[16] The two main legal concepts this court needs to grapple with in analyzing this case are the law of possession and the circumstantial evidence rule. The law of possession requires that the Crown prove the accused had knowledge and control over the illegal material. As noted above, the circumstantial evidence rule allows for a conviction only where the only possible reasonable inference is one of guilt. If a reasonable inference exists consistent with innocence, even if there is another, stronger, inference consistent with guilt, this Court must acquit. A reasonable inference does not need to emanate from the evidence, it can come from a lack of evidence.

[17] As regards the element of knowledge in relation to the possession of digital images, Stinson J., of the Ontario Superior Court, in R. v. Braudy, summarized some of the relevant considerations.

In relation to this element, the Crown is required to demonstrate that the defendant was aware of the content of the material in question.

Where there is evidence that the defendant viewed the material, he would be fixed with knowledge of its contents: see R. v. Garbett, [2008] O.J. No. 917 at para. 47. While such evidence may be sufficient proof of knowledge, however, it is not strictly necessary. Knowledge may instead be inferred from circumstantial evidence: see R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.).

Where the material in question is an electronic file, the court may draw inferences as to knowledge, or the absence thereof, from such circumstantial indicators as ownership, access, and usage of the computers on which the electronic file is stored: see R. v. Tresierra, 2006 BCSC 1013, [2006] B.C.J. No. 1593 at paras. 7 and 8.

[18] I would only add that inferences of knowledge could also be based on the way the material was organized i.e. separate dedicated folders and the sheer volume of digital material.

[19] Control simply refers to power or authority over the item whether exercised or not.

[20] It is the Crown's position that the only inference this Court can draw from the evidence is that Wilfred Kwok had knowledge and control over the items in the computers. The Crown relies on the following facts to prove that assertion:

1. Computer 1 and 2 had the user name 'wil'
2. Computer 1 was password protected and that password had not been changed since 2016
3. There is a receipt on Computer 2 for the hard drive used on Computer 1 in the name of Wilfred Kwok
4. There is paperwork, usually of a more confidential type, such as pay stubs and T4's on the computers in the name of Wilfred Kwok
5. The only address revealed in all that paperwork is associated with Wilfred Kwok and 696 Edinburg Rd. S, where the search warrant was executed
6. The offending material was stored in separate folders created by the user on Computer 1 and on separate folders on the desktop of Computer 2
7. The sheer volume of offending material
8. The folders on Computer 1 were created between 2018 and 2019
9. That image [JulyJailbait.club]1st studio Siberian Mouse sm_111 and video 1st Studio Siberian Mouse sm_1.wmv were located on Computer 1 in a user created folder
10. That Wilfred Kwok used Computer 1, as evidenced by the police record check dated June 2019, a January 2018 receipt for a license plate renewal sticker which indicated that a VISA ending in 3019 in the name of Wilfred Kwok, and an airline ticket receipt dated May 2018 with payment made by the same VISA ending in 3019
11. The nature of the mess in the room indicates that it is lived in
12. That the VLC player on Computer 2 confirms that some offending material was viewed
13. That offending material titled "jailbait" was viewed in 2016 on Computer 2
14. That the climbing equipment is an indication that the room belongs to Wilfred Kwok since we know he is a climber from his pay stubs, tax returns and where he was arrested
15. The computer was plugged in
16. The university degree on the wall

[21] The defence contends that this Court has a paucity of information from which to conclude that Wilfred Kwok had knowledge and control over the computer which overlaps with the possession of child pornography on the computer. I characterize the defence position in the following manner since there can be no doubt, based on the amount of offending material, the fact that it was viewed and organized into files that someone was actively engaged in the downloading, organizing and viewing this illicit material, hence the possession of it. Therefore, the question for this court to determine is whether the only reasonable inference is that this person is Wilfred Kwok or, if not him, whether he had knowledge and control over the computers and the illicit material on it.

[22] Defence counsel bases his argument on the negligent investigation of the police. The defence argues that there is no testimony to indicate that 696 Edinburg Rd. S. was Wilfred Kwok's address at the time of the investigation and execution of the search warrant, that there was no surveillance to confirm he resided there during those times, and, even if he did live at 696 Edinburg Rd. S., there is no evidence to confirm that the basement room where the computers were located was his room. The defence notes that there were other people located in the home, and that although documents relating to Wilfred Kwok were found, it is not determinative, because no document searches were done for the other people located in the home. In fact, there is no evidence of the names of two of the people. Therefore, the defence argues, based upon the above, the reasonable inference exists that some other person, namely one of the three parties located in the home during the execution of the warrant, downloaded, organized and viewed the offending material and that Wilfred Kwok did not have knowledge or control over it.

[23] While I agree that the investigation was problematic, and there was no testimony or surveillance that Wilfred Kwok resided at 696 Edinburg Rd. S., all the information gleaned from the computer was that Wilfred Kwok resided at 696 Edinburg Rd. S. The airplane ticket receipt confirms that Wilfred Kwok's address was 696 Edinburg Rd. S. as late as May 2018. The receipts are of importance in this analysis. They were found on Computer 1 (password protected), they confirm the accused's address for the first half of 2018 and they have the benefit of added confirmation since both used a VISA ending 3019 belonging to the accused. Between the times of these two receipts (license plate renewal and airplane ticket), 2 folders containing illicit material were created. The folder "data" was created on January 26th, 2018 containing 60 images and 1 video and the "sib" folder on March 18th, 2018 which had 236 images. As a result, at least two user created folders containing illegal material were in existence when Wilfred Kwok used Computer 1 and lived at 696 Edinburg Rd. S.

[24] In relation to when the "data" and "sib" folders were created in 2018, the only conclusion I can come to is that Wilfred Kwok had knowledge and control over Computer 1 and its contents. Computer 1 is password protected and that password was created upon creation of the user "wil". There is only one password and one user to Computer 1. Therefore, since we can confirm that Wilfred Kwok used the computer in 2018, that the password was the same then as in 2016 when it was created, that he is the owner of Computer 1 as confirmed by the receipt for the hard drive, that his name is Wilfred and the user name is "wil", and that his personal documentation was on the computer leads to the inexorable conclusion that Computer 1 is Wilfred Kwok's or that, at the very least, it was his computer when the "data" and "sib" folders were created and he was the only user account.

[25] In addition to that, Computer 1 was used by Wilfred Kwok for a police record check in June 2019. At that time, all 12 user created folders found on Computer 1 with illicit material had been created.

[26] In relation to the material on Computer 2, user created folders containing illegal material were created in April 2014, September 2015, February 2016 and December 2016. Furthermore, the forensic analysis demonstrates that "jailbait" images were being viewed from September 2014 until May 2017. Pay stubs for Wilfred Kwok overlap some of those times. The pay stubs date from November 2015 until March 2016. Also, there is the bill of sale for hard drive dated March 2016 in the name of Wilfred Kwok which allow for the conclusion that Wilfred Kwok was using Computer 2 while offending material was directly on the desktop, immediately accessible to him.

[27] In relation to the defence position, while I do not consider it necessary that the Crown prove Wilfred Kwok resided at 696 Edinburg Rd. S., I find the suggestion that Wilfred Kwok no longer resided there to be speculative and unconvincing. The overlapping evidence of Wilfred Kwok having control and possession of Computer 1 and 2 at the time the offending material was downloaded and sorted on the computers is itself compelling evidence of his possession of those devices. Furthermore, the only address contained in Wilfred Kwok's personal documentation links him to 696 Edinburg Rd. S. To be sure, the evidence is clear and unilateral that Mr. Kwok lived there at least until May 2018, which we know from the receipts and the tax returns. We also know that Mr. Kwok is involved in climbing and the bedroom in the basement had climbing equipment in it. The room downstairs also had Mr. Kwok's University degree on the wall and a password protected computer which he purchased. In addition to that, the room at the time of the execution of the search warrant had a lived-in quality because of the clothes strewn about, the laundry basket, the plugged-in computer and vitamins on the headboard. Based on all this evidence, I can draw the inference that someone lived in the downstairs room and given the wealth of personal material related to Wilfred Kwok, I can conclude that the person is Wilfred Kwok.

[28] As a result, I cannot believe that Mr. Kwok ever left 696 Edinburg Rd. S. This would have required him to leave his bedroom in disarray, leave his password protected personal computer behind (which he used for a police record check in June 2019, two months before the execution of the search warrant), leave his university degree behind, and a wide variety of clothes strewn about the room. Basically, there is no basis to ground an inference that he moved, and his mere absence from the home upon arrest is insufficient to ground that inference.

[29] Counsel further argues that even if Wilfred Kwok used the computer or it was his computer, others in the home could have accessed it. While I would have preferred a better investigation, the keyword search "Kwok" did not reveal any personal information relating to his father, who had the same last name and who is a resident of 696 Edinburg Rd. S. The other two residents of the home, who appear to be the accused's sister and mother, do not appear to have provided their names to the police, therefore, I do not know if their last name is "Kwok" or not. However, again, given my finding that the downstairs was obviously Mr. Kwok's bedroom, that he was the owner of Computer 1, that there was only one password and one user "wil" since 2016 and that he most assuredly was using the computer up until June 2019 (the record check), there is no evidence to support other users of Computer 1. Even if I were to give credence to the possibility of other users of Computer 1 in the home, it does not detract from the overwhelming evidence that Computer 1 was Wilfred Kwok's and he had possession of it.

[30] While it is easier for someone to have accessed Computer 2, since there was no password, based on my earlier analysis, Wilfred Kwok was accessing that computer at the time there was readily accessible material in a folder on the desktop. My finding that he had knowledge and control of the material on Computer 2 does not require me to make a finding that no one else used computer two.

[31] As a result, I find Mr. Kwok guilty of the charge of possession.

[32] Based on the uncontradicted evidence of Detective Constable Kaut, who was qualified as an expert in the area of computers generally, and in accessing information from the internet in particular, that Detective Constable Lunn accessed an illicit picture from Mr. Kwok's computer from a file sharing program, that a user of a file sharing program would know that they access material from other computers, which involves the implicit acknowledgement that people are accessing material from their computer, I find him guilty of making available. And based on the same reasoning I find him guilty of accessing. I believe the accessing charge is a Kienapple and I stay it.

Released: November 18th, 2020

Signed: Justice M.K. Wendl

Footnotes

[1] R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000

[2] R. v. Braudy, [2009] OJ No 347 at 50-55

[3] As cited by Fish J. in R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253 at paragraph 21: In R. v. Panko (2007), 52 C.R. (6th) 378, the Ontario Superior Court of Justice held that possession might be established on the basis of icons on the desktop that pointed to illegal images stored on the computer's own hard drive.

[4] R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448 (C.A.), at para. 19

[5] The mens rea for "making available" is stated by the Supreme Court in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R 212 at paragraph 83:

There is no dispute that the accused in a prosecution under s. 163.1(3) must be proved to have had knowledge that the pornographic material was being made available. This does not require, however, as the trial judge suggested, that the accused must knowingly, by some positive act, facilitate the availability of the material. I accept Caldwell J.A.'s conclusion that the offence is complete once the accused knowingly makes pornography available to others. As he put it,

[i]n the context of a file sharing program, the mens rea element of making available child pornography under s. 163.1(3) requires proof of the intent to make computer files containing child pornography available to others using that program or actual knowledge that the file sharing program makes files available to others. [para. 87]