Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 09 24 COURT FILE No.: Halton Info #12100540

B E T W E E N :

HIS MAJESTY THE KING

— AND —

DAVIDE MANGANIELLO

Before: Justice Jennifer Campitelli

Heard on: May 16,17, June 14, July 24, 2024 Reasons for Judgment released on: September 24, 2024

Counsel: H. Apel, for the Ministry of the Attorney General S. Bernstein, for the accused Davide Manganiello

CAMPITELLI J.:

[1] Mr. Manganiello is charged with having child pornography in his possession on February 9, 2023, video and image files, contrary to s. 163.1(4) of the Criminal Code of Canada. On February 9, 2023, Halton Regional Police executed a search warrant at Mr. Manganiello’s place of residence. Investigators made entry at 7:31 a.m. and Mr. Manganiello was present. A number of items were seized, which are detailed in the ‘Exhibit Log’, marked as Exhibit #1 on these proceedings. In particular, a Lenovo desktop computer was seized, which ultimately when analyzed contained both video and images, the parties agree meet the definition of child pornography.

[2] It was jointly submitted that the sole issue, which requires my determination is possession with respect to child pornography located on the Lenovo desktop computer. Simply put, if the crown is able to establish that Mr. Manganiello was in possession of the video and imagery beyond a reasonable doubt, the defence concedes all other elements of the offence charged have been made out.

The Evidence of the Halton Regional Police Service

[3] Detective Constable Stephane Verrault testified that on November 23, 2022, he accessed the ‘Roundup Forensics Torrential Downpour Receptor’, which is a tool used by investigators to download child pornography from users who are offering child pornography over the BitTorrent network. He recalled that he observed three separate cases of downloads of suspected child pornography involving one particular IP address in Burlington, Ontario. That IP address was 24.150.15.78. DC Verrault viewed the three downloads suspected of being child pornography, and personally classified them as child pornography.

[4] It was DC Verrault’s evidence that he used a program called ‘maxmind.com’ to determine the involved IP address was from Burlington, Ontario, and that the internet provider was Cogeco Cable. An employee of Cogeco Cable confirmed that IP address connected to all three downloads of what investigators classified as child pornography was from Burlington, Ontario. DC Verrault then sought and obtained a production order from Cogeco Cable and served it on the service provider utilizing email correspondence. DC Verrault received the results of the production order back on November 25, 2022, identifying the internet subscriber connected with the involved IP address to be Davide Manganiello of 709-110 Plains Road West, Burlington, Ontario. DC Verrault subsequently sought a search warrant for 709-110 Plains Road West, Burlington, which was granted for entry on either February 9, 2023, or February 10, 2023.

[5] On February 9, 2023 at approximately 7:31 a.m. Halton Regional Police attended 709-110 Plains Road West, Burlington, Ontario to execute the search warrant. They knocked on the door multiple times; however, after receiving no response they utilized a key obtained from the Superintendent to gain entry. Mr. Manganiello eventually responded and was located in the single bedroom of that unit. He was placed under arrest.

[6] Investigators proceeded to seize a number of items, which are detailed in the ‘Exhibit Log’, marked as Exhibit #1 on these proceedings. In particular, a Lenovo desktop computer was located on a desk in the main area of the unit and seized. A mirror image of the contents of this device was provided to DC Verrault by Technological Crimes and analyzed on February 10, 2023. DC Verrault located a total of 101 images he classified as meeting the definition of child pornography. Those images were described for me, they were sealed and marked as Exhibit #7 on these proceedings. The defence concedes these images meet the legal definition of child pornography. DC Verrault testified that 100 of these images were located in the ‘carved space’ of the computer. I understand that ‘carved space’ involves deleted files that Windows had not yet removed from the computer. Rather, any space being taken up by those deleted files has been marked by the operating system as available to be overwritten. One additional image was located outside of that space.

[7] In addition, DC Verrault located 48 videos on the Lenovo desktop, which the defence concedes meet the definition of child pornography. 44 of those videos were located in the ‘carved space’, and 4 videos were located using the following pathway: DAV\desktop\mystuff\movies\troupe.beverly.hills\subs. The prosecution focused on those four videos. Again, videos the defence conceded met the legal definition of child pornography were described for me, and they were sealed and marked as Exhibit #7 on these proceedings.

[8] There were 143 other items in the ‘subs’ folder. Those items included pornography and items DC Verrault identified as ‘of investigative interest’.

[9] With a view to the ‘my stuff’ folder generally, it contained 229 items. In addition to the ‘movies’ subfolder, there were various documents of a personal nature connected to Mr. Manganiello. Those included: 407 ETR statement; Garda World Certificate of Completion, for Davide Manganiello, dated August 13, 2021; Dash Camera Receipt, issued in the name of Davide Manganiello with an address of 709-110 Plains Road West, Burlington, with a purchase date of January 30, 2020; Resume for Davide Manganiello; within a subfolder titled ‘medical’ there were 76 items including blood work and Lifelabs documentation from January of 2023.

The Evidence of Davide Manganiello

[10] Mr. Manganiello was not an impressive witness. He provided evidence that I find was intentionally vague, internally inconsistent and at times, unbelievable. Aspects of his evidence were farfetched, and inherently implausible. Moreover, I find that when Mr. Manganiello was challenged with respect to the obvious implausibility of his evidence, he became evasive and offered illogical explanations. I did not find Mr. Manganiello to be a credible witness, nor did I find his evidence to be reliable.

[11] Mr. Manganiello testified that the Lenovo desktop, which contained the child pornography was a 17-year-old machine. When asked to explain the “idiosyncrasies” associated with this machine, Mr. Manganiello explained the “power button broke back in 2016”, so in order to turn the machine on “you need a pen” or something sharp and a tennis ball. Mr. Manganiello further explained you have to “keep pounding the power button until it turns on”. Moreover, Mr. Manganiello recalled that to turn the machine off, he needed to “throw break number 9 in the laundry room”. Finally, Mr. Manganiello explained that the “CMOS battery is damaged on the mother board”, which causes the machine’s date and time to randomly change. Other than issues with the date and time, which may have impacted some of the recorded times connected with the various files referenced by the prosecution, I fail to see the relevance of any of these “idiosyncrasies” with a view to the child pornography located by investigators. Rather, I find Mr. Manganiello’s evidence on this point was an attempt to undermine and distance himself from the computer, which housed the child pornography files. This aspect of his evidence was also inconsistent with his practice of utilizing the Lenovo desktop to save and store significant personal files, like medical and work documentation. In fact, it was Mr. Manganiello’s evidence that he stored “everything” in the ‘my stuff’ folder located on the Lenovo machine.

[12] Mr. Manganiello testified that the Lenovo desktop was left on at all times and was used primarily for gaming using “Twitch” and watching movies. He recalled that he first titled the ‘my stuff’ folder ‘my junk’; however, changed the name of the folder in 2008. He explained that he didn’t have a password on the computer because the operating system was dated and would not allow it.

[13] When asked if he knew how child pornography files came to be located on his Lenovo desktop, in his ‘my stuff’ folder he stated, “I have no idea”. It is Mr. Manganiello’s evidence that he had never seen the ‘titles’ associated with the child pornography files and articulated by DC Verrault. Mr. Manganiello explained that he leaves his computer on “all the time”, and “anyone who has keys can come and crash” in his living room or spend the night. He further testified that they could “download anything” they wanted because he had an unlimited package for the internet. He recalled that individuals other than himself downloaded movies on his Lenovo desktop because if they brought movies on “CD-ROMs and flash drives”, the computer would have difficulty reading the media and would “jump”.

[14] Mr. Manganiello recalled at the time of the offence, the following people had two keys and were able to access his apartment at any time: his entire immediate family; his mother; father; brother; sister-in-law; a friend that works for Halton Police; his close friend Jose, Jose’s sister; and two friends from work Himanshu (sp?) and Mark. Mr. Manganiello recalled that in the period surrounding February 2023, he “travelled all over North America” for his job. When he was travelling for business, all of the people who had keys to his apartment would have access. When pressed under cross examination, Mr. Manganiello agreed that it was possible any of the individuals who had access to his apartment, except his mother, could have downloaded the child pornography. Mr. Manganiello excluded his mother as he described her as having “zero knowledge of any type of electronic device”. To be clear, I reject this aspect of Mr. Manganiello’s evidence entirely. I find it to be inherently implausible, and completely unbelievable. I do not find it even remotely possible that one or more of the various individuals who apparently had limitless access to Mr. Manganiello’s apartment downloaded and saved 143 vides of pornography, and 4 videos of child pornography in the same ‘subs’ folder, without his knowledge. I have come to this conclusion, keeping in mind the nature of the content, and the reality that these files were all located within Mr. Manganiello’s overarching ‘my stuff’ folder, created by him, which also contained numerous documents of a very personal nature.

[15] When questioned about the number of individuals who were able to access his apartment with keys, Mr. Manganiello testified that he was a minimalist and there was nothing of value in his apartment. He referenced his upbringing in Northern Ontario, and his desire to share his possessions with those less fortunate. With respect to the creation of numerous keys, it was Mr. Manganiello’s evidence that he had permission from his employer to “practice” making keys on his home keys. He recalled that making keys was a “finicky” skill and unless you practice, “your keys are garbage”.

[16] Mr. Manganiello testified that not only had be never viewed the file names associated with the child pornography, he had never accessed the ‘troupe.beverly.hills’ folder. He claimed he used a filing system at that time wherein he renamed downloaded movie files once he watched the contents. Mr. Manganiello explained that the default file format always includes periods in the title because the computer “doesn’t understand spaces”. Therefore, he was able to keep track of the movies he watched by renaming the titles and removing the periods. Mr. Manganiello also testified that every movie downloaded from the internet has a ‘subs’ folder regardless of whether any of the contents were accessed. I do not believe that Mr. Manganiello had any such system or that he had never accessed the ‘troupe.beverly.hills’ folder or the ‘subs’ folder found within. I found this aspect of his evidence to be illogical, and to be an obvious attempt by Mr. Manganiello to distance himself from the child pornography located by investigators.

Grounding Legal Principles

[17] The crown relies on circumstantial evidence to prove possession of the child pornography files. As such, the principles as outlined in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 are applicable, and provide helpful guidance.

[18] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities, which are inconsistent with guilt. The crown thus, might need to negate these reasonable possibilities; however, the crown certainly need not negate “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. Other “plausible theories” and other “reasonable possibilities” must be based on logic and experience applied to the evidence or lack of evidence, and not speculation. However, an alternative theory to guilt is not rendered speculative by the mere fact that it arises from the lack of evidence. A certain gap in the evidence may result in inferences other than guilt. But, those inferences must be reasonable given the evidence and absence of evidence, “assessed logically, and in light of human experience”: R. v. Villaroman, supra at para 36 and 37.

[19] I have also reminded myself that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts. It also runs contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. In essence, 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: R. v. Villaroman, supra at para 35.

[20] Given that Mr. Manganiello, the defendant, has provided evidence, the framework set out in R. v. W(D.), [1991] S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:

(1) If I believe the evidence of Mr. Manganiello, obviously, I must find him not guilty;

(2) Second, even if I do not believe the testimony of Mr. Manganiello, but I am left in reasonable doubt by it, I must find him not guilty;

(3) Finally, even if I am not left in doubt by the evidence of Mr. Manganiello, I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Manganiello.

[21] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:

(1) Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

Position of the Parties

Crown

[22] The crown’s theory relies on the definition of possession as outlined in s. 4(3) (i) of the Criminal Code of Canada. Specifically, that Mr. Manganiello had the child pornography files in his actual possession. The Crown argues the only reasonable inference, which arises from the evidence is that Mr. Manganiello was in possession of the child pornography. Simply put, there are no other reasonable alternatives available for me to consider. It was Mr. Manganiello’s residence, his personal desktop computer, and his personal folder on that device, which was created by him. Moreover, the overarching folder contained other personal documentation and was labelled ‘my stuff’; therefore, the child pornography files were downloaded by him. They were Mr. Manganiello’s files. The Crown strongly urges me to find the defence theory to be implausible, and not based on logic or human experience. Instead, it takes the position that the only reasonable inference, which I can draw from the circumstantial evidence on this record is that Mr. Manganiello is guilty.

Defence

[23] In contrast, the defence argues that it is reasonable to infer that, one of the numerous individuals who had access to Mr. Manganiello’s apartment, and his desktop computer at the relevant time could have downloaded the child pornography. The machine was always on, unlocked, and wholly available for viewing and downloading media files. The defence submits this reality presented all of the individuals referenced by Mr. Manganiello with the opportunity to download and save child pornography to the ‘subs’ folder. The defence argues its theory is plausible and based on logic and experience when applied to the evidence on this record. Given the defence takes the position there is a reasonable inference other than guilt, it argues I should find Mr. Manganiello not guilty as charged.

Analysis

[24] I have considered Mr. Manganiello’s evidence within the context of the complete evidentiary record, which has been placed before me. I do not believe Mr. Manganiello. I find he provided evidence that was internally inconsistent, farfetched, and illogical. These aspects of his evidence adversely impacted his credibility and the reliability of his evidence overall. Moreover, when faced with some of the contentious aspects of his evidence, I find Mr. Manganiello became evasive, and attempted to distance himself from the child pornography files located by investigators. First, by attempting to undermine and distance himself from his personal desktop computer, and then by distancing himself from the ‘troupe.beverly.hills’ folder altogether. To be clear, I do not accept Mr. Manganiello’s evidence, nor am I left in a reasonable doubt by it.

[25] However, my analysis is far from over. Even though I do not accept Mr. Manganiello’s evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of Mr. Manganiello’s guilt.

[26] In assessing the circumstantial evidence on this particular record, I have considered the defence theory, as I must. In the result, I find it to be inherently implausible. As stated previously, I do not find it even remotely possible that any of the individuals who apparently had limitless access to Mr. Manganiello’s apartment at the time of the alleged offences downloaded and saved 143 vides of pornography, and 4 videos of child pornography in the same ‘subs’ folder, without his knowledge. The defence theory must be considered contextually, and in light of the nature of the content itself. This was Mr. Manganiello’s personal computer, and these items were contained within an overarching folder he created, and labelled ‘my stuff’. The ‘my stuff’ folder also contained various items of a very personal nature. Mr. Manganiello admitted to viewing other files located in the ‘movies’ folder, which also housed the child pornography files. I was very troubled by Mr. Manganiello’s obvious attempts to distance himself from where investigators ultimately located the child pornography. To be very clear, I completely reject Mr. Manganiello’s evidence to this end, and the defence theory entirely.

[27] Carrying my analysis forward, I do find it is reasonable to infer that Mr. Manganiello was in possession of the child pornography files, located on his personal desktop. I have concluded that the only reasonable inference, which can be drawn from the circumstantial evidence on this record is that Mr. Manganiello was in possession of those items. The child pornography files were located on his personal desktop and housed within his ‘my stuff’ folder because he downloaded them personally and saved them in the location where investigators found them. In the result, the crown has proven beyond a reasonable doubt that Mr. Manganiello was in possession of all of the child pornography files located in the ‘subs’ folder.

Conclusion

[28] In the result, I find Mr. Manganiello guilty.

Released: September 24, 2024 Justice Jennifer Campitelli