R. v. Mains, 2022 ONCJ 44

ONTARIO COURT OF JUSTICE DATE: February 1, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NEIL MAINS

Before: Justice John North

Reasons for Judgment released on February 1, 2022

Counsel: Ms. C. Sweeny............................................................................................ counsel for the Crown Mr. V. Rishea............................................................................................. counsel for Mr. Mains

NORTH J.:

INTRODUCTION

[1] On February 6, 2020, police officers executed a search warrant at Neil Mains’ apartment. Mr. Mains, his wife and his daughter were inside the apartment at the time. The police found child pornography on a Dell desktop computer which was located in the living room area of the small apartment.

[2] Mr. Mains is charged with five Criminal Code offences. It is alleged that between November 28, 2019 and December 16, 2019, he possessed, accessed and made available child pornography. It is also alleged that on February 6, 2020, he possessed and accessed child pornography.

[3] Mr. Mains elected to have a trial before me in the Ontario Court of Justice.

[4] Mr. Mains brought a Charter application to have the evidence that was seized by the police excluded under s. 24(2) of the Charter. The Crown brought an application to have a post-arrest statement made by Mr. Mains declared voluntary.

[5] The trial proceeded as a blended Charter/voluntariness voir dire and trial proper. Mr. Mains testified, but only for the purposes of the Charter and voluntariness applications. I did not consider Mr. Mains’ testimony on the trial proper. The Crown called two Toronto Police Service (TPS) officers as witnesses. I dismissed the Charter application and found that Mr. Mains’ post-arrest statement was voluntary.

[6] After I ruled on the Charter and voluntariness applications, the defence called Emma Stevens as a witness. Ms. Stevens is Mr. Mains’ common-law wife.

[7] In his closing submissions, Mr. Rishea, counsel for Mr. Mains, acknowledged the following:

1. On February 6, 2020, there was child pornography on the Dell desktop computer that had been seized from Mr. Mains’ apartment.
2. Child pornography had been shared from the Dell desktop computer over the internet between November 28, 2019 and December 16, 2019.
3. The person who was making child pornography available from the Dell desktop computer between November 28, 2019 and December 16, 2019, had possession of and accessed the child pornography on that computer.
4. The only user-generated account on this computer was “Neil”.
5. There was a password on the computer.
6. Mr. Mains gave what Mr. Rishea characterized as a “partial confession” to the police. Mr. Rishea stated that Mr. Mains “certainly says a number of things that are close to a confession.”

[8] Ms. Sweeny, on behalf of the Crown, took the position that the statements made by Mr. Mains during the police interview were not “an overwhelming confession”, but argued that it was “a confession”.

[9] By the end of the trial, the live issues that had to be decided had been significantly narrowed. In their closing submissions, both counsel agreed that there were two fundamental issues for the Court to decide:

1. Did Mr. Mains have knowledge and control of the child pornography in the Dell desktop computer? [1]; and
2. Did Mr. Mains actually know, or was he wilfully blind to, the fact that child pornography in the downloads folder of this computer was available for other users of the peer-to-peer network to download?

[10] During his closing submissions, Mr. Rishea emphasized that all of the evidence “must be filtered through the fact that [Mr. Mains] was not the only person with access to this computer.” I agree. Both Mr. Mains’ wife and daughter knew the password to the computer. Mr. Mains’ wife used the computer. I have considered this evidence in assessing whether, based on the cumulative effect of all of the admissible evidence, the Crown has established that, in relation to each of the five counts on the information, the only reasonable inference is that Mr. Mains is guilty.

EVIDENCE

[11] In this section, I review the evidence of the three witnesses. I will address the police interview with Mr. Mains later in my reasons.

Officer Steven Mailer

[12] The first witness called by the Crown was Officer Steven Mailer.

[13] Officer Mailer has been employed by the TPS for 25 years. He worked in the Child Exploitation Unit from 2014 until the time of this investigation. One of his responsibilities was to investigate child pornography offences committed over peer-to-peer (“P2P”) file sharing networks.

[14] P2P networks allow users to download files directly from computers of other users of that network.

[15] As long as a user of a P2P network has not opted out of file sharing, whenever the user’s computer is turned on and connected to the Internet, the files in the user’s shared folder will be available for downloading by other users who are connected to the P2P network.

[16] To use a P2P network, a person must have P2P software and an Internet connection. Shareaza is software that can support P2P networks. In this case, Shareaza software had been installed and uninstalled on the Dell desktop computer multiple times between November, 2019 and February 6, 2020.

[17] Officer Mailer explained that as a police officer he had access to the Child Protection System (CPS). CPS identifies suspected child pornography on P2P networks using an automated process. When suspected child pornography is identified, CPS logs the Internet Protocol (IP) address and the Global Unique Identifier (GUID) associated to the suspected child pornography.

[18] A GUID is a:

“Unique alpha-numeric reference code that is used as an identifier in P2P computer software. A unique GUID is generated every time that P2P software is downloaded to a computer.” [2]

[19] Officer Mailer testified that if P2P software is downloaded and erased, the GUID number could be different if the P2P software is downloaded again.

[20] Officer Mailer explained that CPS looks for certain keywords or phrases, such as “PTHC”, which stands for pre-teen hard core. CPS also uses hash values to identify suspected child pornography. Each video and image has a unique hash value.

[21] Officer Mailer testified that during this investigation he used Shareaza LE software. Shareaza LE is used by law enforcement to identify, access and download suspected child pornography. [3]

[22] Officer Mailer testified that in 2019 he used CPS to find IP addresses in the Toronto area that may be sharing or willing to share child pornography.

[23] Using CPS, he identified a target IP address in the Toronto area. Using Shareaza LE, Officer Mailer had his computer “monitor this IP address” and attempt to download child pornography from the shared folder of the computer at this IP address. Officer Mailer explained that sometimes it takes months to download files from a target IP address. One reason why it can take a long time to download files is because the user of the target computer shuts his or her computer off. Once the user’s computer is turned back on, the police computer will attempt to download the rest of the file or files.

[24] Officer Mailer testified that in November and December 2019, his police computer downloaded three complete files directly from a computer at the target IP address. Officer Mailer viewed the three downloaded files and confirmed that they were child pornography videos.

[25] On December 19, 2019, Constable Mailer obtained a production order for subscriber information for the IP address from Bell Canada. On January 14, 2020, he received subscriber information from Bell Canada. The account holder was listed as “E. Stevens”. The address provided was Unit 505, 665 Kingston Road, Toronto. The second contact person for the account was Neil Mains.

[26] On February 5, 2020, Officer Mailer obtained a search warrant for this address.

[27] The search warrant was executed at 6:34 a.m. on February 6, 2020.

[28] Officer Mailer testified he and other police officers knocked on the door of the apartment. Emma Stevens answered the door.

[29] The police found three people inside the apartment: Mr. Mains, Ms. Stevens and their 23-year-old daughter, Leyla.

[30] Officer Mailer showed the occupants a copy of the search warrant, told them why the police were there and advised that they were being detained.

[31] Shortly before 7:50 a.m., Detective Constable Jeff Kidd, who is a computer forensic examiner, found file names that were indicative of child pornography on a Dell desktop computer that was located on a desk in the living room. Detective Constable Kidd also located Shareaza software on this computer. Detective Constable Kidd advised Officer Mailer about his findings.

[32] At 7:50 a.m., Officer Mailer arrested Mr. Mains for possession of child pornography, accessing child pornography and making available child pornography. Officer Mailer advised Mr. Mains of his rights to counsel and cautioned him.

[33] At 8:21 a.m., Mr. Mains was taken to the 51 Division station by two uniform officers.

[34] Officer Mailer contacted duty counsel. At 9:58 a.m. Mr. Mains spoke to duty counsel.

[35] At shortly before 10:44 a.m., Officer Mailer escorted Mr. Mains from a cell to an interview room. Officer Mailer and another police officer interviewed Mr. Mains for less than an hour. As I previously stated, I will review some parts of the police interview later in these reasons.

[36] Officer Mailer testified that Detective Constable Kidd and Detective Constable Saini, both TPS computer forensic examiners, extracted data from the Dell desktop computer using Lace and Axiom software.

[37] After the data was extracted, a Lace Report was prepared. A Lace Report categories images and videos found in an electronic device. A Lace Report was made an exhibit on this trial.

[38] Officer Mailer testified that there were 491 images of child pornography on the computer. There were 66 “unique” images of child pornography and 425 duplicates. 288 of these images were “user and system generated”. 203 of the images were “deleted.”

[39] Using the Lace Report, Officer Mailer described the location of each of the images in the computer.

[40] The Lace Report also stated that there were 15 child pornography videos in the Dell desktop computer. 13 were unique videos and two were duplicates. All had been deleted.

[41] Officer Mailer testified that the police did not recover (from the Dell desktop computer) the three videos that Officer Mailer had downloaded between in November and December, 2019.

[42] Officer Mailer testified that the Shareaza LE report revealed that the GUID associated with the target IP address changed nine times between October 28, 2019 and December 3, 2019. Officer Mailer knew this before he interviewed Mr. Mains.

[43] Officer Mailer testified it was his experience that, “if the GUID changes many times that software has been downloaded and then deleted and then downloaded again.”

Detective Constable Jeff Kidd

[44] The second witness called by the Crown was Detective Constable Jeff Kidd.

[45] He is a computer forensic examiner and is assigned to the Child Exploitation Unit. He has been a computer forensic examiner since 2009. Detective Constable Kidd has received extensive training in conducting forensic examinations of computers.

[46] In this case, Detective Constable Kidd was involved in the execution of the search warrant and the forensic examination of the seized computer.

[47] Prior to the execution of the search warrant, Detective Constable Kidd was informed that this was a P2P child pornography investigation which involved Shareaza.

[48] During the execution of the search warrant, Detective Constable Kidd located a Dell desktop computer which was on a desk in the common area of the apartment. Detective Constable Kidd described the apartment as small.

[49] Detective Constable Kidd pulled the hard drive out of the computer.

[50] While in the apartment, using forensic tools, Detective Constable Kidd found a Shareaza file folder on the Dell desktop computer. He also conducted “key word searches” on the computer for words that are often used in relation to child pornography. One of the terms that he searched for was “PTHC”, which stands for pre-teen hard core. Detective Constable Kidd located the file name “PTHC” in file path users/Neil/downloads. That was the extent of the forensic analysis Detective Constable Kidd conducted on this computer while in the apartment.

[51] The Dell desktop computer was seized. Detective Constable Kidd testified that the Dell desktop computer was the primary focus of the investigation.

[52] Using Lace and Axiom software, Detective Constable Kidd conducted a forensic examination of the computer in his lab. He explained that Lace software “carves out” images and videos from an identical copy of a seized hard drive and then categorizes them for an investigator to review.

[53] Detective Constable Kidd testified that Axiom software carves out information that assists in determining user activity, including internet activity and chat activity. That information is put into a form that is more easily filtered and viewable by an investigator.

[54] Detective Constable Kidd testified that eight “unique child pornography videos” had recently been placed into the recycle bin and that the recycle bin had been emptied. He testified that these files were not in the recycle bin when he did his examination.

[55] Detective Constable Kidd explained that when a file is deleted by a user and placed into the recycle bin “it’s like a stop-gap between actually being deleted for the user.” He testified that as the user of this computer did this shortly before the police seized the computer, “information about that deleted file out of the recycle bin is still available for me to review.” He explained that “in relation to the recycle bin the deletion had been so recent that the file information is still contained in the file – in the file system.”

[56] Detective Constable Kidd testified that he was able to “match three of the eight files to tell you where they actually came from before they were deleted as well as who the user was.” According to Detective Constable Kidd, the three files came from “the downloads folder of the user Neil.” Based on the Axiom Report, the three files were deleted and placed into the recycle bin at 3:07.55 p.m. (EST) on February 5, 2020. [4] Detective Constable Kidd testified that the recycle bin was emptied sometime between 3:07.55 p.m. on February 5, 2020 and when the search warrant was executed the following morning.

[57] Detective Constable Kidd testified that the other five videos had the following file path: partition-34/users/Neil/local/Shareaza/incomplete. He said that this was important as “this is where the Shareaza program stores files that haven’t been completely downloaded yet. In other words, they’re in progress.” Detective Constable Kidd explained that “once the file is completely downloaded it will be moved to the default location where Shareaza stores completed files.” He stated, “to be…completely fair, most users would not access a video in that location. They would wait until it was competed and moved to a different – to the proper location where they would normally access it.” Detective Constable Kidd added that “as these files wouldn’t have a movie extension, so it wouldn’t be easily played by a user in that location.”

[58] Detective Constable Kidd identified Partition-34/users/Neil/appdata/local/Microsoft/Windows/explorer” in the Dell desktop computer as a “system file.” He explained that the files inside this are generated by the Windows operating system. He testified when “you use Windows and you browse through files that’s the actual program you are using, it’s called File Explorer, and what it does is it creates and generates thumbnails.” Detective Constable Kidd testified that in this computer, Windows Explorer “generated thumbnails of the files inside the folders.” When a user browses through files, the thumbnails provide the viewer with a visual representation of, usually, the first frame of a video.

[59] Detective Constable Kidd testified there were 64 different thumbnails and 158 duplicate thumbnails.

[60] Detective Constable Kidd testified that in order for a thumbnail to be generated by the system, the “folder containing the file needs to be opened.” He testified that a user does not have to “click on” the actual file for a thumbnail to be generated – only the folder containing the file. Detective Constable Kidd added, “the system doesn’t automatically generate thumbnails for every file that comes into the computer, it generates it once the folders are opened.”

[61] In cross-examination, Detective Constable Kidd testified that the generation of thumbnails “can be a user pre-set”, and if a user has it set that he or she wants to see thumbnails in all of their folders in the view settings then it will do that every time a folder is opened. On the other hand, a user can set it up so that “details” will be shown and not thumbnails.

[62] Detective Constable Kidd testified that a record of thumbnails is kept “for a very, very, very long time.” He testified that, as far as he was aware, “unless you use a third-party software to purge them, it doesn’t purge, it keeps it.” According to Detective Constable Kidd, there are usually no dates associated to thumbnails.

[63] Detective Constable Kidd testified that when Windows was installed on this computer the first user-name was “Neil”. That was the only user-generated account on the computer.

[64] Detective Constable Kidd was asked if Shareaza software had been downloaded on the Dell desktop computer. He responded that “there was a rather vast history of installed and uninstalled programs on this device.” With respect to Shareaza specifically, Detective Constable Kidd testified as follows:

“At the time of my examination Shareaza, how should I say, it was installed but it didn’t seem to work for me when I tried to run the program, but the program had been installed as of the 5th of February again. My examination of the device showed multiple uninstalls and re-installs of the Shareaza program over a period from November – actually November 19 leading all the way up until the date – the February date, which coincided with Officer Mailer’s first download.”

[65] Detective Constable Kidd testified that, based on his experience, it is common for users to install and uninstall Shareaza as “an effort to find of defeat detection.” Detective Constable Kidd explained that this strategy would not prevent the police from continuing an ongoing investigation as Shareaza LE does not “care about GUIDs”. Instead, he testified that Shareaza LE “utilizes the IP address of the – so basically of the residence, it utilizes the contents of the folder, so the shared folder.” In other words, as Detective Constable Kidd testified:

“…the uninstalling and installing of Shareaza is irrelevant in these sorts of investigations as long as the IP address doesn’t change and the file is still available for download.”

[66] Detective Constable Kidd explained that Shareaza LE will continue to return to an IP address to attempt to download a file, and:

“…even if the computer had gone offline, Shareaza had been uninstalled, re-installed, uninstalled, the IP address didn’t change. So Shareaza LE knows let’s go back to this IP address, if that file is still available, I’ll just pick up where I left off.”

[67] D.C. Kidd testified that in order for a file to be available to be downloaded it has to be in the designated shared folder of the user. He explained that Shareaza, by default, uses the downloads folder as its shared folder.

[68] In cross-examination, Detective Constable Kidd testified that in he had installed this version of Shareaza many times in the past and it automatically starts sharing in the default location (which is the downloads folder).

[69] Detective Constable Kidd agreed with Mr. Rishea’s suggestion that “it would be fair to characterize the sharing aspect of Shareaza as an opt-out rather than an opt-in method.”

[70] Detective Constable Kidd testified that “…everything you put in your downloads folder becomes shared on the Shareaza system.” A user can change that default location to any folder they want. He added that a user can make a file unavailable to be shared by deleting the file or moving it to another folder.

[71] Detective Constable Kidd was asked what happens to files that have been downloaded using Shareaza if a user uninstalls Shareaza. He testified that deleting Shareaza does not delete any of these files. If Shareaza is reinstalled, and the files that had been previously downloaded using Shareaza are in the downloads folder, “it automatically repopulates its library with whatever is in the downloads folder and continues sharing it on the network.” In other words, as Detective Constable Kidd testified, “every time it [Shareaza] gets reinstalled, if those files that we’re trying to download are still in there it just automatically becomes available again for download unless the user removes them or changes the default location for Shareaza.” Detective Constable Kidd testified that this is what happened in this case.

[72] Detective Constable Kidd testified that Shareaza was first installed on the Dell desktop computer on November 19, 2019.

[73] Ms. Sweeny asked Detective Constable Kidd whether the three complete child pornography files that Officer Mailer downloaded in November and December, 2019 using Shareaza LE “appeared” on the Dell desktop computer. Detective Constable Kidd that he did not locate the videos themselves. However, he did see the file paths and file names for each of the three videos in the file system. Detective Constable Kidd testified that those files appeared to exist in the downloads folder of the computer when Officer Mailer downloaded them. However, the files had since been deleted.

[74] Ms. Sweeny asked Detective Constable Kidd if he was able to tell if any of the videos had been viewed or opened. Detective Constable Kidd stated that, based on the Windows operating system records, there were several times when the Windows media player ran right after Shareaza, However, he could not say which video was played at the same time Shareaza was running.

[75] Detective Constable Kidd was asked whether there was “anything in the videos themselves that tells you if they’ve been played or not”? He was not aware of any way to determine that, and added that:

“We had – the added problem with this was there was software [Disk Clean Up 2000] on the computer that did purge information.”

[76] Disk Clean Up 2000 is third-party software. Detective Constable Kidd testified that this software had been run the night before the search warrant was executed. According to Detective Constable Kidd, “the computer itself had been somewhat cleaned out of …recent files and things like that.” Detective Constable Kidd testified that while he was not very familiar with Disk Clean Up 2000, he understood that it “tries to clean up the file system” in a computer. It is “designed to kind of purge that information from the privacy security standpoint.” Detective Constable Kidd testified that he believes this program is designed to scrape information out of the file system. He did not know how many times this program had been run on the computer.

[77] In cross-examination, Detective Constable Kidd testified that while he did not have a detailed understanding of Disk Clean Up 2000, he agreed that programs like this can be set up to run automatically. He did not know whether this program was set to run automatically or manually on the Dell desktop computer.

[78] Detective Constable Kidd testified that the last time the Disk Clean Up 2000 program was accessed on this computer was February 5, 2020 at 8:57 a.m. EST.

[79] In cross-examination, Detective Constable Kidd testified that there was a password on the computer.

Emma Stevens

[80] Ms. Stevens testified that in February, 2020, she, Mr. Mains and their daughter Leyla, lived at apartment 505, 665 Kingston Road, Toronto. Ms. Stevens testified that they lived there between November, 2019 and February 6, 2020.

[81] During this period, there was a Dell desktop computer in the residence. The police seized this computer when the search warrant was executed.

[82] Ms. Stevens testified that there was a password on the computer. She and Mr. Mains knew the password. Ms. Stevens testified that she “believes” that Leyla also knew the password.

[83] Ms. Stevens testified that she and Mr. Mains used this computer. When asked by Mr. Rishea whether Leyla ever used this computer, Ms. Stevens replied, “No.” Ms. Stevens said that Leyla had her own computer.

[84] Ms. Stevens testified that she never saw any child pornography on the Dell desktop computer.

[85] Ms. Stevens testified that she did not know what “Shareaza” was.

[86] According to Ms. Stevens, she used the Dell desktop computer to pay bills and “a little bit of internet surfing.”

[87] In cross-examination, Ms. Stevens testified that on February 5, 2020 she had a job which required her to work outside of their home. She said that her work hours were “roughly nine to five.” Ms. Sweeny asked Ms. Stevens if she knew who “would have been in the home” at approximately 3:00 p.m. Ms. Stevens testified that she knew that Ms. Mains worked that day, “so he probably would have been on his way to work at that time.” Ms. Stevens thought that Mr. Mains “probably would have left [their home] around 3, 2:30 or three o’clock.” Ms. Stevens could not recall whether “anyone else would have been in the home during the day.” She testified that in February, 2020 their daughter had a job outside of the home.

GOVERNING LEGAL PRINCIPLES AND STATUTORY PROVISIONS

Presumption of Innocence and Proof Beyond a Reasonable Doubt

[88] In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes their guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged beyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged “rests with the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.

[89] A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt.

[90] In R. v. W.(D.), [1991] 1 SCR 742, at p. 758, Cory J. provided the well-known instructions on the relationship between proof beyond a reasonable doubt and credibility. The applicability of the guidance provided by the Court in W.(D.) is not limited to cases where an accused person testifies. If, for example, a statement has an exculpatory aspect, a court must conduct a W.(D.) analysis: R. v. L.L., 2022 ONCA 50, at paras. 23-27.

Circumstantial Evidence

[91] This case involves circumstantial evidence.

[92] The considerations that must be applied in addressing the relationship between circumstantial evidence and proof beyond a reasonable doubt were discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at paras. 35-38.

[93] In order to find guilt in a circumstantial case, a trier of fact must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty.

[94] Inference must be distinguished from conjecture or speculation.

[95] When assessing circumstantial evidence, a court must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. If there are reasonable inferences other than guilt, the Crown’s evidence will not meet the standard of proof beyond a reasonable doubt: Villaroman, at para 37.

[96] Inferences consistent with innocence do not have to arise from proven facts.

[97] However, a mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends upon reasonable possibility, not conjecture: R. v. R.A., 2017 ONCA 714, at para. 62.

[98] A court must evaluate circumstantial evidence cumulatively, and not on a piece-by-piece basis.

Child Pornography Offences

Possession of Child Pornography

[99] Any person who possesses child pornography is guilty of an offence contrary to s. 163.1(4) of the Criminal Code.

[100] To establish possession, the Crown must prove that an accused had knowledge and control of an item.

[101] To establish control, the Crown must prove that “an accused with the requisite knowledge had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not”: R. v. Chalk, 2007 ONCA 815, at para. 19.

[102] To establish possession of child pornography, the Crown is required to show that an accused person knew the nature of the material, he or she had the intention to possess it, and had the necessary control over it: Villaroman, at para. 10.

[103] The Crown is not required to prove that an accused viewed the child pornography material to obtain a conviction for possession of child pornography: R. v. Daniels (2004), 2004 NLCA 73, 191 CCC (3d) 393, at para. 12 (Nfld. C.A.); Chalk, at para. 20.

Make Available Child Pornography

[104] Section 163.1(3) of the Criminal Code provides that every person who makes available child pornography is guilty of an indicatable offence.

[105] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 83, the Court concludes that the offence of making child pornography available is complete once the accused knowingly makes child pornography available to others. There is no requirement that the Crown must establish that the accused knowingly, by some positive act, facilitated the availability of the material.

[106] An accused may be found guilty of making child pornography available on the basis of willful blindness. Willful blindness “is a substitute for knowledge”: Spencer, at para. 84. Willful blindness “can substitute for actual knowledge whenever knowledge is a component of mens rea”: R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, at para. 21; Spencer, at para. 84.

[107] Willful blindness exists where an accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquires”: Briscoe, at para. 21 [Emphasis in original.]; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3, at para. 98.

[108] In Spencer, at paras. 84-86, the Court found that the trial judge erred by not turning his mind to the evidence that could support an inference of willful blindness in relation to the making child pornography available charge. At para. 85, the Court summarized the evidence that called out for a consideration of willful blindness in that case.

Accessing Child Pornography

[109] Under s. 163.(4.1) of the Criminal Code, it is an offence to “access any child pornography.” Section 163(4.2) provides that, “[f]or 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.”

[110] In Jones, at para. 34, Bourgeois J. stated that accessing child pornography is a general intent offence and the Crown must prove the following:

• that the impugned material is child pornography;
• that the accused person intended to view or have the pornography transmitted him/herself;
• that the accused knew the nature or content of the material; and
• that the accused viewed the child pornography or caused it to be transmitted to him/herself.

CONCLUSIONS

Credibility and Reliability of the Witnesses

[111] Officers Mailer and Kidd were credible witnesses who provided reliable evidence. Their evidence was not undermined during cross-examination. I accept their evidence.

[112] I found Ms. Stevens to be a credible witness who generally provided reliable evidence. I note that Ms. Stevens was not sure where Mr. Mains was at 3:07 p.m. on February 5, 2020. She testified that Mr. Mains “probably” would have left their home “at around 2:30 or 3 o’clock.”

The Post-Arrest Interview

[113] I will now address the police interview of Mr. Mains.

[114] Mr. Rishea argued that there was a reasonable basis to support the conclusion that Mr. Mains was “lying with respect to his confessions with respect to these admissions he made.” Mr. Rishea argued that Mr. Mains could have made certain statements or admissions to “get it over with” or to “just deal with how he perceived the interview was going.”

[115] I do not accept that argument. I note that on a number of occasions during the interview Mr. Mains asserted his right to silence and provided answers that were not inculpatory. The interview was not oppressive or very long. On a number of occasions, Mr. Mains told the officer that he did not know the answer to the officer’s question. He did not hesitate to firmly tell the officer that he would never touch a child.

[116] I agree with Mr. Rishea that a finding that a statement is voluntary does not necessarily mean that admissions made by an accused during the statement must be reliable.

[117] However, after considering the circumstances surrounding the taking of this statement, including the nature of the questions, the length of the interview, the atmosphere in the room during the interview and the answers provided by Mr. Mains, I see no reason to conclude that the answers that the Crown relies on are unreliable.

[118] Having said that, for the reasons which I will explain, I have not given the same weight to all of parts of his statement. Some are more probative than others.

[119] Mr. Rishea also argued that “the confession does not cater specifically to sharing videos or downloading videos.” Mr. Rishea argued that the evidence is, at best, a confession that he viewed child pornography videos, without any indication as to when he viewed those videos. In short, Mr. Rishea argued that the “confession” is not “specific to the circumstances of the charged offences.”

[120] I will now turn to some of the specific answers provided by Mr. Mains.

[121] First, at page 9 of the interview transcript, Mr. Mains is asked if he knows what a Nutella network or a GUID is. Mr. Mains responds that he does not.

[122] At page 10 of the transcript, Officer Mailer makes a somewhat confusing statement about GUIDs, IP addresses and Shareaza. This statement takes up over ¾ of a page. At the end of that statement, the following exchange occurs:

Mailer : “And you – when you – when you set up peer-to-peer file sharing, um, you have to – is it fair to say – do you know enough to say that you have to set it up. You don’t just click through the boxes, you have to be willing to set up certain things.” Mains : “Yea.” Mailer : “…does that make sense to you? “ Mains : “Yes. Yea.” Mailer: “Yea. So, would it make sense to you that you clicked on that you’re willing to share certain files?” Mains : “Ah, like it comes up automatically.”

[123] I am not convinced that Mr. Mains was actually saying that before the interview he knew that Shareaza used an opt-out method of file sharing. Officer Mailer provided Mr. Mains information in the long statement on page 10, and then asked him whether what he said made sense to him. That was followed by another question in which Mr. Mains was asked, after hearing additional information from Officer Mailer about Shareaza, whether it “made sense” to him that if you “clicked on that you’re willing to share certain files”. Mr. Mains’ answer, “it comes up automatically”, arguably provides support for the conclusion that he knew he was making child pornography available. However, in my view, there is some uncertainty as to whether Mr. Mains’ last two answers were essentially an acknowledgement and summary of what Officer Mailer just told him or whether these answers reflected his pre-interview knowledge of Shareaza’s default setting for file sharing. I am not certain that in that statement Mr. Mains actually admitted that he knew that Shareaza uses an opt-out method of file sharing. I am not prepared to give much weight to this part of his statement in determining whether Mr. Mains knew or was willfully blind to the fact that his computer was making child pornography available to other P2P users.

[124] Second, at page 11 of the interview transcript, Officer Mailer makes a statement that occupies about half a page, in which he tells Mr. Mains that he was able to download three child pornography videos directly from Mr. Mains’ computer. After that, the following exchange occurs:

Mailer : “Um, their names ah themselves are indicative to child pornography. Ah, after a while, sadly, in this office, you get um, very accustomed to certain terms like, ‘lolly’. Does that make sense to you? Mains : “Does it make sense to me?” Mailer : “Does it, does it – would you be familiar with that?” Mains : “Sounds like child porn.”

[125] I give no weight to Mr. Mains’ answer in assessing the issues before the court. In the statement leading up to the question, Officer Mailer tells Mr. Mains that certain names are “indicative of child pornography” and that as an officer who investigates child pornography offences he is “very accustomed to certain terms like ‘lolly’”. Given the information that Mr. Mains has just been provided by Officer Mailer, the fact that Mr. Mains responded by stating “it sounds like child pornography” says very little about his knowledge of, or interest in, child pornography before the interview.

[126] Third, this part of the interview occurred immediately after Mr. Mains stated “sounds like child porn”. Officer Mailer asked Mr. Mains if he is familiar with certain terms.

Mailer : “Ah PTHC? Mains : “Yea.” Mailer : “Yea. Um wrinkled?” Mains : “I don’t know that.” Mailer : “No. Are you – but you’re – are you familiar with PTHC?” Mains : “That stands for pre-teen hard core.” Mailer : “Yes. Yes. Um, thank you for that….”

[127] Mr. Mains was aware of what PTHC stood for. He was not given this answer by Officer Mailer. On its own, the fact that Mr. Mailer knew what PTHC means is not particularly probative. However, his answer must be considered in context. Two of the three complete files containing child pornography that Officer Mailer directly downloaded from Mr. Mains’ computer in November and December, 2019 computer had “PTHC” in the first two words of the file names. (See Exhibit 3, Shareaza LE Summary Report). These files were in the downloads folder of the Dell desktop computer for more than a brief period of time in November and December, 2019. As Mr. Mains knew what PTHC means, if he saw the names of those files in the downloads folder of his computer he would have known that they likely contain child pornography. Further, it likely would have been apparent to anyone who saw the explicit file names for these files what they contained. It is not necessary to describe these explicit file names in these reasons. (See Exhibit 3, Shareaza LE Summary Report).

[128] Fourth, Officer Mailer stated that, as a police officer, he needed to understand the “level of threat and risk” posed by Mr. Mains. Officer Mailer asked whether Mr. Mains was “closer to the top where you have touched a child or are you…”? Mr. Mains interrupted by stating “I, I would never.” Officer Mailer responded, “You would never touch a child.” Mr. Mains replied, “no.” Officer Mailer then asked, “You’re still down here on the fantasy level. Is that fair?” In response, Mr. Mains nodded. In my view, while his answer is not irrelevant, I give it little weight in determining whether Mr. Mains knew about the child pornography on his computer.

[129] Fifth, Officer Mailer asked Mr. Mains the following question, “…so how often do you go through the cycle where you can go without it, without watching child pornography?” Mr. Mains replies, “I don’t know (unintelligible for one second), sometimes I’ve gone years.” This answer is not an admission by Mr. Mains that he committed the offences before the court. However, it is evidence that Mr. Mains had an interest in child pornography for some time. In my view, this answer is probative evidence in relation to whether Mr. Mains had possession of the child pornography on the computer.

[130] Sixth, Officer Mailer told Mr. Mains that some people he had investigated for child pornography offences had “hundreds or hundreds of thousands”. Given the context of this part of the conversation, Officer Mailer was clearly referring to possession of videos or images of child pornography. Officer Mailer then asked Mr. Mains the following question, “you’re still in the early stages but um, but videos and images or just or both?” Mr. Mains replied “Videos.” In my view, that answer is probative evidence regarding Mr. Mains’ knowledge and control of the child pornography videos on the computer.

Conclusions on Counts One, Two, Four and Five – Possession and Accessing Child Pornography

[131] Counts one and two allege that Mr. Mains possessed and accessed child pornography between November 28, 2019 and December 16, 2019. Counts four and five allege that Mr. Mains committed the same offences on or about February 6, 2020.

[132] In deciding whether the only reasonable inference is that Mr. Mains possessed and accessed child pornography on the above-mentioned dates, I have considered all of the evidence, including the evidence that two other people – his wife and daughter - had the password to the computer, and that his wife used the computer.

[133] None of the individual answers provided by Mr. Mains during the police interview that the Crown relies on, in isolation, establish beyond a reasonable doubt that Mr. Mains committed the offences alleged in the information.

[134] For the following reasons, it is my conclusion that when all of the evidence is considered cumulatively, the only reasonable inference is that Mr. Mains possessed and accessed child pornography on the dates alleged in counts one, two, four and five:

1. Mr. Mains was a user of this computer.
2. The computer was located in the living room of his apartment.
3. There was only one user-generated account on this computer – “Neil”. Once again, in considering the weight to be given to this evidence, I take into account that Ms. Stevens also used this computer and their daughter had the password to the computer.
4. Shareaza software was used to download at least some of the child pornography on the computer.
5. I accept the unchallenged evidence of Ms. Stevens that she did not know what Shareaza is.
6. I accept the unchallenged evidence of Ms. Stevens that she never saw child pornography on the Dell desktop computer.
7. I accept the unchallenged evidence of Ms. Stevens that, as far as she knew, their daughter did not use the Dell desktop computer. In assessing the weight to be given to Ms. Stevens’ knowledge of their daughter’s use of the computer, it must be remembered that they lived in a small apartment and this computer was in the living room.
8. I accept the unchallenged evidence of Ms. Stevens that their daughter had her own laptop computer.
9. I find that Shareaza software had been installed and uninstalled on the Dell desktop computer multiple times from November, 2019 until February 6, 2020.
10. During the police interview, Mr. Mains was asked if he was familiar with P2P file sharing and he answered “yes.” Mr. Mains was asked if he was familiar with Shareaza and its “setup and stuff” and he replied “somewhat”. During the interview, Officer Mailer asked Mr. Mains whether it was fair to say that Shareaza had been deleted from his computer and Mr. Mains replied, “Yea.” Once again, Ms. Stevens did not know what Shareaza was.
11. I accept Detective Constable Kidd’s evidence that he was able to match three of the eight files identified by Officer Mailer as child pornography and determine where they came from before they were deleted. Detective Constable Kidd testified that the three files came from “the downloads folder of the user ‘Neil’.”
12. I accept the evidence of Detective Constable Kidd that the other five videos identified as child pornography had the file path “partition-34/users/Neil/local/Shareaza/incomplete”. These were files that were in the process of being downloaded. I accept Detective Constable Kidd’s evidence that this is where Shareaza stores files that have not yet been completely downloaded. I note, once again, that Ms. Stevens was not familiar with Shareaza. Mr. Mains was familiar with Shareaza.
13. The three above-mentioned files that had been in the downloads folder of the Dell desktop computer were deleted and placed in the recycle bin at 3:07.55 p.m. (EST) on February 5, 2020. The recycle bin was emptied sometime between 3:07.55 p.m. on February 5, 2020 and 6:34 a.m. on February 6, 2020. I accept the evidence of Ms. Stevens that she was not home at 3:07 p.m. on February 5, 2020. She could not say whether or not Mr. Mains was home at that time, but testified that he could have been travelling to his place of employment. There is no evidence that clearly situates Mr. Mains outside his apartment at 3:07.55 p.m. on February 6, 2020. In considering this evidence, I take into account Detective Constable Kidd’s testimony that he did not know whether the Disk Clean Up 2000 software on the computer was set to run automatically or had to be controlled manually.
14. Detective Constable Kidd found the term “PTHC” in file path “users/Neil/downloads”.
15. I am satisfied the evidence establishes that the three complete child pornography videos that Officer Mailer downloaded in November and December, 2019 directly from the downloads folder of the Dell desktop computer had been in the downloads folder of that computer for more than a week. It would have been apparent to anyone who saw the explicit names of these files that they likely contained child pornography (See Exhibit 3, Shareaza LE Summary Report). Two of the file names included the term “PTHC”. During the police interview, Mr. Mains correctly stated that “PTHC” stands for pre-teen hard core. I note that in Villaroman, at para. 59, in upholding the trial judge’s decision that the user of the computer in that case knowingly downloaded child pornography, the Supreme Court cited the trial judge’s conclusion that the titles of downloaded files were “explicit, disturbing, and would logically indicate that the associated files are child pornography.”
16. Mr. Mains’ answer that sometimes he had gone years without watching child pornography is evidence that he had an interest in child pornography.
17. Officer Mailer asked Mr. Mains, “you’re still in the early stages…but videos and images or just or both?” Mr. Mains responded, “videos.”
18. The explicit names of the files that were not completely downloaded by Detective Constable Kidd in November and December, 2019 from the downloads folder of the Dell desktop computer likely would have revealed to anyone who saw them that they probably contained child pornography. These names are contained in Exhibit 3, the Shareaza LE Summary Report.
19. There were 64 unique thumbnails generated by the Windows operating system that Officer Mailer identified as child pornography. In order for a thumbnail to be generated the folder containing the file had to be opened by the user. Some of these thumbnails were matched by Detective Constable Kidd to evidence of child pornography in the deleted and incomplete folders. The fact that there were 64 unique thumbnails identified as child pornography, as opposed to a much smaller number of thumbnails of this nature, is relevant evidence in assessing whether child pornography was downloaded to the user’s computer without his or her knowledge. However, in considering the weight to be given to the thumbnail evidence, it is important to recall Detective Constable Kidd’s evidence that a record of thumbnails is kept “for a very, very, very long time” and that usually there are no dates associated to thumbnails. As a result, I give little weight to this evidence in deciding whether Mr. Mains had knowledge and control of the child pornography in the computer on the dates alleged in the information. However, it is worth noting, as previously stated, that Detective Constable Kidd was able to match at least a small number of the thumbnails to the videos identified as child pornography that were in the deleted folder and in the incomplete folder of the computer.

[135] When Officer Mailer asked Mr. Mains whether the police would find any more “brutal copulation” videos on the Dell desktop computer, Mr. Mains responded, “Sometimes I just randomly double-click on things.” I do not believe that the child pornography videos downloaded by the police directly from Mr. Mains’ computer in November and December, 2019, or any of the child pornography found on his computer on or about February 6, 2020, was the result of Mr. Mains accidently downloading this material. I am not left in a reasonable doubt by Mr. Mains’ statement that sometimes he randomly double-clicks on things. Based on all of the evidence that I accept, I am satisfied beyond a reasonable doubt of Mr. Mains’ guilt in relation to counts one, two, four and five.

Conclusion on Count Three - Make Available Child Pornography

[136] I will now address count three, which alleges that Mr. Mains made child pornography available.

[137] Based on all of the evidence - including Mr. Mains’ statement to Officer Mailer that he was “somewhat” familiar with Shareaza and its set up - it is more likely than not that Mr. Mains actually knew or was willfully blind to the fact that he was making child pornography available to other P2P users between November 28, 2019 and December 16, 2019.

[138] However, based on all of the evidence, including Detective Constable Kidd’s testimony that, by default, Shareaza uses a user’s download folder as its shared folder, I am not satisfied beyond a reasonable doubt that the only reasonable inference available on the evidence is that Mr. Mains actually knew that he was making child pornography available.

[139] Further, I am not satisfied beyond a reasonable doubt that Mr. Mains saw the need to make further inquiries but deliberately chose not to do so.

[140] It is reasonably possible that in November and December, 2019 Mr. Mains was unaware that the files in his download folder which contained child pornography were available for other people to download.

[141] I find Mr. Mains not guilty of making child pornography available.

SUMMARY

[142] To summarize, I find Mr. Mains guilty of two counts of possession of child pornography and two counts of accessing child pornography (counts one, two, four and five).

[143] I find Mr. Mains not guilty of making child pornography available (count three).

Footnotes

[1] On the dates alleged in the information. [2] R. v. Nguyen, 2017 ONSC 1341, at para. 11. [3] Detective Constable Kidd gave additional evidence about CPS and Shareaza LE. [4] The Axiom Report actually stated that this occurred at 8:07.55 p.m. (GMT).

NORTH J.