Introduction

[1] Mr. Davies is charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code, making child pornography contrary to section 163.1(2), making available child pornography contrary to section 163.1(3) and possession of a controlled substance, namely methamphetamine (crystal meth), contrary to section 4(3) of the Controlled Drugs and Substances Act. Mr. Davies re-elected trial by judge alone and pleaded not guilty to all of the charges.

[2] At the outset of the trial Mr. Davies brought an application, pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, for an order declaring that his right to be free from unreasonable search and seizure had been violated and an order excluding evidence obtained pursuant to the warrant to search his apartment authorized on February 3, 2010. The search warrant was based on information given by an individual, Michael Wolfe, to P.C. Rietkoetter and a KGB statement given by Mr. Wolfe to D.C. Blackadar and P.C. Rietkoetter. Mr. Wolfe had been charged with fraud under and while he was still in custody, he disclosed information about Mr. Davies and his alleged involvement in child pornography. His evidence was relied upon to obtain the search warrant. Mr. Davies admitted that Mr. Wolfe was known to him as he had supplied Mr. Davies with crystal meth in the past.

[3] The trial proceeded by way of a blended voir dire subject to a few exceptions. On February 24, 2012, I dismissed the application to exclude the evidence and the trial was adjourned at the request of Mr. Davies to May 3, 2012.

[4] Mr. Davies was arrested on February 3, 2010 at his apartment on the second floor of […] Street in the City of Toronto. His apartment, which comprised the second floor and third floor loft bedroom (hereinafter “loft bedroom”) where Mr. Davies slept and had a computer desk, was searched at the time of his arrest. In addition, a room Mr. Davies rented out on the second floor was searched, although no child pornography was found on the roommate’s computer located in that room. Mr. Davies’ roommate had access to Mr. Davies’ kitchen, living room and bathroom on the second floor.

[5] The Crown called D.C. Blackadar and D.C. Manherz who were two of the officers who conducted the search. Mr. Wolfe was not called as a witness nor did the Crown seek to rely on his KGB statement. In addition, D.C. Irish and D.C. Warnock were called by the Crown. The Defence admitted that D.C. Irish is an expert in the field of computer forensic examination. He is currently assigned to the Intelligence Division – Technological Crime (computer forensics) of the Toronto Police Service. His computer specific training is extensive over the period 2001 to March 2012 and he has been qualified on several occasions as a computer forensic expert both in the Provincial and Superior Court. I qualified him as an expert to give opinion evidence on the subject of computer forensics. D.C. Warnock, the officer in charge of this investigation, reviewed the DVDs and CDs that were seized by police and determined what images were classified as child pornography. His evidence was largely unchallenged.

[6] Mr. Davies testified on his own behalf. In addition, his brother, Daniel McRae, testified during the course of the hearing of the Charter application.

The Issues

[7] There is no dispute that 0.16 grams of methamphetamine was seized from a lock-box found in Mr. Davies’ bedroom closet Mr. Davies admitted that this was his crystal meth. He testified that he had become addicted to crystal meth after learning he had leukemia but that he had been clean since mid-December 2009, apart from one relapse in mid-January 2010. He said that he was unaware that this small quantity was still in his lock-box, but it was not suggested that this was a defence. Accordingly, there is no doubt that Mr. Davies is guilty of count 4.

[8] At the conclusion of the trial Mr. Golwalla, on behalf of the Crown, conceded that there was no evidence to support count 3 and so Mr. Davies is acquitted of that count. That leaves counts 1 and 2.

[9] With the cooperation of counsel facts were agreed to and it was admitted that child pornography was found on two hard drives and many disks found in the portion of […] Street rented by Mr. Davies. Of the seventeen computer hard drives seized by police and examined by D.C. Irish, two (referenced as tech exhibits 12 (trial exhibit 42) and 17 (trial exhibit 41) hereinafter referred to by their tech exhibit numbers) were found to contain child pornography as follows:

(a) eight pictures (tech exhibit 12) of child pornography that had been deleted but not yet overwritten;

(b) five movies (tech exhibit 17) that were accessible by any computer user with a minimum of effort; and

[10] In addition, 4,254 child pornography images and 449 child pornography movies were found to exist on the CDs/DVDs seized by police. D.C. Warnock reviewed 93 disks but only some contained child pornography. These numbers do not include the hard drives.

[11] Although there was no issue with respect to continuity of the exhibits, during the course of closing submissions, a significant issue arose between counsel as to where in the third floor loft bedroom the CDs/DVDs had been seized from. There was no dispute that D.C. Blackadar seized a small plastic box that contained two CDs, as well as the lock-box, at the bottom of the closet in the loft bedroom. Her evidence that she previewed them at the scene and determined that these two CDs contained child pornography was not challenged. Mr. Cawkell submitted that apart from these two CDs, the evidence was that the disks seized by police had been found strewn about the loft bedroom. This was disputed by Mr. Golwalla who submitted that apart from these two CDs, the others were found by D.C. Manherz who testified about disks that he found in a clear plastic box under Mr. Davies’ bed, which was bolted closed with a nut.

[12] The disks were not individually tagged at the time of the search. D.C. Warnock testified that he “adopted” the file after the search and he gave his own numbers to the disks that he reviewed and testified about. The Exhibits Officer, Officer Purchas, did not testify. The exhibits chart that he prepared was introduced into evidence through D.C. Blackadar. Mr. Golwalla stated it was “on consent” but I have disregarded this statement as Mr. Cawkell did not comment on that one way or the other. However, based on the evidence of D.C. Blackadar, I find that this chart accurately records what was seized and where, at the time of the execution of the search warrant. D.C. Blackadar was present for the search and she testified that she was familiar with the chart. She confirmed that it lists the items seized, the time, where the item was found, who found it and who it was turned over to and a description of the article and property tag. The exhibits chart completed by D.C. Purchas conforms with her recollection of what she did on the search. The chart was marked as an exhibit without any objection from Mr. Cawkell. It was not touched on in the cross-examination by Mr. Cawkell of D.C. Blackadar and neither counsel asked D.C. Manherz about it.

[13] In light of this evidence from D.C. Blackadar, I am satisfied of the accuracy of the exhibits chart. It makes it clear that apart from the two CDs seized by D.C. Blackadar, the only other CDs seized were the ones seized by D.C. Manherz in the plastic box that he testified was found under Mr. Davies’ bed in the loft bedroom.

[14] The unchallenged evidence of D.C. Warnock is that the child pornography ranges from what he described as “mild child pornography” with a child posed in a certain way with the image focused on the child’s genitalia up to children being penetrated anally and adults engaged in oral sex with children and children performing oral sex on adults. The children are primarily male; boys ranging in age from toddlers to pubescent boys aged 12-14. He only classified the images as child pornography if they involved a prepubescent child. Adult pornography was also found and 99.9% of it was male on male.

[15] Mr. Davies testified and explained why there was or might be child pornography on the two hard drives and why he was not aware of its existence. He also testified that he was not aware of the child pornography on one specific disk seized by D.C. Manherz and denied that the other disks with child pornography that were seized were his. With respect to the two CDs seized by D.C. Blackadar, he denied that they belonged to him and suggested they had been planted there by Mr. Wolfe or someone else. He admitted to having a wide variety of adult gay pornography and testified the disks of child pornography were not part of that collection. He denied having knowledge of the child pornography on the hard drives and disks and denied ever downloading or making child pornography. On these bases, as I will describe in more detail, it was Mr. Davies’ position that he is not guilty of counts 1 and 2. In the alternative, Mr. Cawkell advanced a legal argument that if the Crown has only proven Mr. Davies was in possession of these CDs; the Crown has not proven that he copied them from the Internet and that in any event, copying does not constitute “making” child pornography.

[16] I heard evidence from the officers and Mr. Davies as to what different short forms may mean in the gay community. There were differences in this evidence. Wikipedia and Urban Dictionary definitions were entered into evidence to identify slang by the Crown but Mr. Cawkell did not admit that these definitions were authentic. Given the admission that child pornography was found on the CDs seized by police I found I did not need to determine what various markings on the disks may mean. The fact certain disks contained child pornography was sufficient to determine the charges.

[17] In light of these admissions, the issues are as follows:

(1) Has the Crown proven that the child pornography found on the hard drives; tech exhibits 12 and 17, was in Mr. Davies’ possession?

(2) Has the Crown proven that the CDs with child pornography found in the loft bedroom were in Mr. Davies’ possession?

(3) If so, has the Crown proven that Mr. Davies is also guilty of “making” child pornography? A resolution of this issue may require determining what constitutes “making” child pornography.

The Evidence

The Evidence of Mr. Davies – General

[18] Until he became seriously ill with leukemia, Mr. Davies was gainfully and successfully employed in various capacities including group homes for children, working with young offenders, Kids Help Phone, homeless shelters, and the Ministry of Housing and Correctional Services. Mr. Davies testified that as a result of his illness he eventually could not work and he lost his employment in March 2008. Mr. Davies testified that he had never had any accusations of any impropriety when he was working with youth. After his diagnosis with leukemia, Mr. Davies became addicted to crack cocaine and ended up using crystal meth. He said that he quit using crystal meth and had no idea he had any of it left in the house. He testified the amount in the jar would not even be enough for a “hit”.

[19] After Mr. Davies used up his savings, he testified that he started fixing computers in his apartment to earn an income. He described two computer systems he had owned, namely a desktop and a laptop, which he said had been stolen on January 12, 2010, along with several other electronic devices; he alleges by a former roommate. The laptop was a custom-made HP laptop that was built for Mr. Davies by a computer company. He described all of its security features which he said he had to have as he used this laptop when he was working for a mental health agency and accordingly, it needed to meet Ministry of Health standards for security. Although the Crown did not accept his evidence that that these computers had been stolen, D.C. Blackadar testified that she did not see any operating desktops or laptops in the loft.

[20] Mr. Davies testified to his sexual orientation; he is gay and prefers men that do not have a lot of body hair. He denied being “into children” or ever having sex with anyone who was under 18, to his knowledge. Mr. Davies admitted having two “party and play” parties at his house but denied there would have been both drugs and sex or alcohol and sex at those parties.

[21] Mr. Davies testified that he was going to move at the beginning of March 2010 and that he had given notice to his landlord, as he could no longer afford the rent. He also testified that at some point before his arrest he did not have an Internet connection at his apartment.

[22] I will consider the evidence Mr. Davies gave that is specific to the hard drives and disks seized as I analyze the evidence.

The silver box of CDs (trial exhibit 8G) – not seized

[23] A photograph of an open silver box that contains numerous disks was entered into evidence. Considering all of the evidence, there seems to be no dispute that, as Mr. Davies said, this box contained his legal pornography collection. Mr. Davies testified that the police went through this collection one DVD at a time and there is no dispute that none of the disks from this box were seized. Mr. Davies testified that at least 50% of this pornography collection was downloaded from the Internet using the computer he had owned in order to burn the disks, when he had access to the Internet.

[24] This collection was very organized. Individual CDs have white labels with numbers. Based on a photograph of Mr. Davies’ computer desk before the search, it appears that at least a couple of these disks were on this desk. The box holds up to five hundred DVDs and Mr. Davies had prepared an Excel spreadsheet that categorized each of these disks by title, type of pornography, comments etc.

The Evidence of the Officers

[25] The credibility of the officers who testified was not challenged by Mr. Cawkell. Since much of the evidence as to what was seized and what was found on the seized hard drives and disks is not in dispute, I shall review that evidence, consider the evidence of Mr. Davies, make findings of fact and determine what the Crown has proven as I review the four categories of items seized as follows:

(a) Hard drive – tech exhibit 12

(b) Hard drive – tech exhibit 17

(d) CDs seized by D.C. Manherz

Analysis

[26] Before considering the evidence I remind myself that since Mr. Davies testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1]apply. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2] In considering the evidence of Mr. Davies, I am entitled to consider it in the context of all of the other evidence.

Credibility of Mr. Davies

[27] Mr. Davies has testified many times in a professional capacity in Youth Court, Family Court, at inquests into the deaths of homeless people and at the Ontario Review Board. He gave his evidence in a straightforward manner and his demeanour did not change when he was cross-examined. There was nothing about his demeanour that suggested he was not telling the truth. Although he had to be careful not to use painkillers before and during his evidence, I had no concerns about the ability of Mr. Davies to give reliable evidence.

[28] Mr. Davies does not have a criminal record. I did not consider Mr. Davies’ admitted history of using drugs to adversely impact on his credibility, particularly given his evidence as to what led to his addiction. He did admit that he would buy drugs for people but this evidence was not pursued by Mr. Golwalla. I have disregarded this evidence in considering Mr. Davies’ credibility.

[29] Mr. Cawkell argued that Mr. Davies’ admission that the crystal meth was his bolsters his credibility but I do not accept that submission. Given where this drug was found, and given it was in a lock box that Mr. Davies had the key to, he could hardly deny it was his.

[30] The evidence of Mr. Davies as to how he began to earn income by fixing computers is corroborated not only by the evidence of his brother, Mr. McCrae, but also by the pictures taken at the time of the search which show a lot of computer parts in the loft bedroom. This evidence becomes extremely important in considering the hard drives.

[31] Whether or not Mr. Davies’ computers were stolen before his arrest is not directly relevant in the sense that there is no doubt that they were not there at the time of the search. However, the concerns I have about this evidence reflect on his credibility. Mr. Davies gave an explanation for why he did not report this alleged theft to police, which I was not particularly persuaded by, especially given his evidence that he knew who the person was who committed the theft. Even if I accept that explanation, his suggestion that the person who stole his computers and other electronics placed ads on Craigslist which he found and his denial that he placed those ads was incredible. Mr. Davies testified that at the time of his arrest he did not have Internet or telephone. He identified what appears to be notes of the ads on Craigslist that he said were made by his boyfriend Ben using Ben’s Internet while Mr. Davies was at Ben’s place. Mr. Davies claimed he did not have an operating computer at this time and Ben did not have a printer and so Ben wrote what they saw on a poster. The evidence of these notes, however, is also consistent with Ben writing out information from the ads because they did not have a printer and that these ads were placed by Mr. Davies. The suggestion from Mr. Davies’ evidence that the person who stole these computers and the Blackberry, posted these ads, made no sense as the ads included details that only Mr. Davies would know. In the case of the ad for the laptop, the ad offered to provide a receipt of the original purchase, hardly something a thief could do. That ad also indicated that interested buyers should come to […]between 7 a.m. and 7 p.m. and “I’ll be here for sure” and to buzz the top buzzer for Ken Davies “as that’ll get me up if I’m sleeping”. Again this is obviously not the type of ad a thief would run. In the ad selling the Blackberry, potential purchasers were to call Ben in order to buy it from Ken. Again, the location is […] Street. For these reasons, the only rational conclusion that I can come to is that Mr. Davies sold his computers and Blackberry before his arrest, perhaps because he needed money. Although it is not clear to me why he was untruthful about this, I find this is significant in assessing his credibility as a witness.

[32] In addition, as I will come to, much of Mr. Davies’ evidence concerning the CDs/DVDs seemed incredulous, particularly in light of my findings as to where the disks containing the child pornography were found.

Has the Crown proven that the child pornography found on the hard drives; tech exhibits 12 and 17, was in Mr. Davies’ possession?

Tech exhibit 12

[33] The hard drive, tech exhibit 12, is described as a “Maxtor 40 GB IDE HDD”. It had labels indicating “Maxtor 40 GB” and “Formatted 40 GB” and a label with the name “Matt”. All of the child pornography on this hard drive had been deleted but not overwritten. D.C. Irish testified that he is able to extract deleted information if it has not been overwritten but if it has been overwritten it is gone. He did not explain how he could extract the deleted information and whether or not this is easy or difficult to do.

[34] According to Mr. Davies, in December 2009 he was building Mr. Wolfe and his boyfriend Matt Holmes, new laptops. He said that this hard drive came from Mr. Holmes’ computer. He testified that in order to upgrade these hard drives, he first cut and pasted the data on these hard drives to tech exhibit 17, which he used as a backup for these purposes. He intended to then move the data from there to the new computer systems. Mr. Davies testified that during this process, he found hundreds of child pornography images on Mr. Holmes’ and Mr. Wolfe’s old hard drives. Mr. Davies explained that when he was setting up the new laptop for Mr. Holmes, Mr. Holmes had asked for certain directories and as a result he had to open individual files and see thumbnails when he was cutting and pasting the data from Mr. Holmes’s hard drive to his backup drive. He then “saw what I didn’t want to see”. He provided no explanation for why he saw the child pornography on Mr. Wolfe’s computer during the upgrade process.

[35] Mr. Davies testified that he formatted these hard drives and deleted the child pornography that he saw from the Seagate drive; tech exhibit 17 and that he did not transfer the child pornography to the new computers. According to Mr. Davies, when he discovered the child pornography he called Mr. Wolfe and told him that he did not want anything more to do with him. He told Mr. Holmes and Mr. Wolfe to get their laptops and he did not have the laptops when his apartment was searched. Mr. Davies testified that Mr. Holmes did not want his old hard drive back (tech exhibit 12), so Mr. Davies kept it.

[36] Mr. Davies’ evidence about this hard drive is corroborated by the fact that this hard drive has a label with the name “Matt” on it and a label that it was formatted. The fact that the hard drive, which is tech exhibit 17, has folders such as “Mike’s laptop” and “Matt’s pics” corroborates this evidence as well. In addition, Mr. Davies’ evidence is also consistent with the fact that the child pornography on this hard drive had been deleted but not yet overwritten.

[37] The Crown must establish that Mr. Davies knowingly had the child pornography in his possession; namely that he knew it was not actually deleted and that he could still access it and that he would know how to access it. Mr. Davies was not asked any questions to establish this. Although he was skilled in fixing and upgrading computers, there is no evidence as to his skill in this area. Although this hard drive was in Mr. Davies’ actual possession, I am not satisfied beyond a reasonable doubt that Mr. Davies knew the child pornography was still there, or if he did, that he knew how to access it given he had deleted it. I find that this fact and Mr. Davies’ evidence with respect to this hard drive raises a reasonable doubt as to whether or not he knowingly had the child pornography on this hard drive in his possession.

[38] For these reasons, I have a reasonable doubt as to whether or not Mr. Davies knowingly had the child pornography on this hard drive in his possession.

Tech exhibit 17

[39] It is an agreed fact that this hard drive is described as a “Seagate 160GB IDE HHD” with an external enclosure. When the external enclosure was removed the hard drive had labels indicating “Ken’s Backup” and “back-up HDD”. When D.C. Irish performed a further examination of this hard drive looking for evidence of ownership, he found 31 items that he believes are connected to Mr. Davies. An exhibit of these items using a screen capture was introduced. These included documents with Mr. Davies’ name on them and invoices from Bell in his name and with his address. In any event, this hard drive is admitted to be Mr. Davies’ backup hard drive. It is also admitted that to backup his hard drive Mr. Davies would transfer data from one storage device to this backup hard drive.

[40] Based on D.C. Irish’s expertise, he believes that this hard drive is a storage device as opposed to part of a computer that was used to access the Internet. It did not have an operating system program on it that could be used to start this hard drive and use it as an operating system.

[41] Folders on this hard drive included “Mike’s laptop”, “Mike’s porn” “Matt’s pics” and a number of email folders such as “…”. D.C. Irish testified that with respect to the email folders, the file structure suggests it could be emails or pictures used to identify the user or biographical information of the user but D.C. Irish could not say what was in the folder. Data from various hotmail installations has been copied over to this hard drive. D.C. Irish did not find full chat files on it.

[42] D.C. Irish did not testify as to where the child pornography on this hard drive was stored, and what file path[^3] would take a user to this pornography. When D.C. Warnock gave evidence, he checked D.C. Irish’s report and testified that the file path on tech exhibit 17 where the five movies of child pornography were found, that were still accessible, was under \C Lola-Josh B 123. D.C. Warnock testified that the child pornography on tech exhibit 17 contains both gay child porn and straight child porn. All but two or three images are adult males on young boys. The other two or three are adult males on young females.

[43] Mr. Davies testified that he had seventeen backup hard drives but he primarily used this hard drive, tech exhibit 17 marked “Ken’s Backup”. He said that he used this hard drive for backing up client files when he was upgrading client computers. Mr. Davies explained the process that he followed when upgrading client computers. As already stated, he would cut and paste data from the client’s computer onto this hard drive; tech exhibit 17. He would then format the client’s new hard drive and load on a new operating system and set up the file structure that the client wanted. He would then use a program called WIN XP and tell it to take all filenames of a particular type and move them over to the client’s computer. He wouldn’t necessarily look at all of these files. When Mr. Davies was using the backup drive and copying over client data, he usually did not analyze the data other than with a virus protection program. He was not interested in the data on the client’s computer.

[44] According to Mr. Davies, some of the information found on tech exhibit 17 came from Mr. Wolfe’s and Mr. Holmes’ laptops. He testified that some of his personal information was also backed up on this hard drive as well. It was not clear if he was still doing this or not but when he was asked about his personal pictures found on this hard drive, he testified that it had been his old backup and was not his full backup and that he had two others that he used. Mr. Davies also said that the hard drive from his old computer system was on tech exhibit 17. In addition, Mr. Davies testified that he had owned a desktop computer that he allowed people to use when they visited. It was not clear if he was talking about the one that he says was stolen. He identified a number of other names shown in the various file paths of this hard drive that he says were names of people that he did computer upgrades for.

[45] Mr. Davies testified that he never formatted this hard drive completely other than when he first got it. After he cut and paste information onto this hard drive, he would then copy and paste the information across to the client’s new system. He did not delete any information until he knew the client was satisfied with the upgrade. Mr. Davies did not say that he then went back to delete the client information from tech exhibit 17.

[46] Mr. Davies’ explanation with respect to the five movies that contain accessible child pornography on this hard drive, linked to a file named Josh, is that Josh is one of Mike Wolfe’s friends, whom he let use his backup drive so that he could reinstall his operating system on his laptop. Mr. Davies gave him a file folder to put it in so that he could cut and paste his files “across” or as I understand to back them up, onto the hard drive. Mr. Davies let Josh do this using tech exhibit 17; he did not do this work for Josh.

[47] Mr. Davies’ evidence that he copied data from Mr. Wolfe’s and Mr. Holmes’ laptops to this hard drive in order to upgrade the hard drives on their laptops is corroborated with the evidence that supports this that I have already reviewed in connection with the hard drive; tech exhibit 12. It is also corroborated by the references on tech exhibit 17 to “Mike’s laptop”, “Mike’s porn” and “Matt’s pics.” Although there is no evidence as to what the child pornography was that was deleted, the fact there was deleted child pornography on this hard drive is also consistent with Mr. Davies’ evidence as to what he did when he saw child pornography on the laptops belonging to Mr. Wolfe and Mr. Holmes. For these reasons, and the reasons already stated in connection with tech exhibit 12, I find that the Crown has not established that Mr. Davies knowingly had the child pornography that had been deleted from this hard drive in his possession; namely that he knew it was not actually deleted and that he could still access it and that he would know how to access it.

[48] As for the movies that were not deleted, Mr. Davies’ evidence that he let someone by the name of Josh use this hard drive to backup his computer to is corroborated by the name on the file path where these movies were found. His evidence raises a reasonable doubt as to whether or not Mr. Davies knowingly had this child pornography in his possession; namely that he knew it was on this hard drive.

[49] For these reasons, I have a reasonable doubt as to whether or not Mr. Davies knowingly had the child pornography on this hard drive in his possession.

Has the Crown proven that the CDs with child pornography found in the loft bedroom were in Mr. Davies’ possession?

The Two CD’s Seized by D.C. Blackadar (Exhibit 38)

[50] As already stated, D.C. Blackadar seized two CDs, each in their own clear plastic cases, that she found in a small plastic box with papers and photographs, in the closet in the loft bedroom. D.C. Blackadar testified that when she searched the closet there were a lot of things in the closet that she had to remove to get to this plastic box. Both CDs are on disks made by Sony, called “Sony DVD+RW”. Disk 1A has a small white label that was put on the Sony side of the CD that has the words “BBoys”. There are also a lot of scribbles and marks in marker on the Sony label of this CD. Disk 2A has a small white label that is marked: “BB Pic”. In addition the CD it marked “BB” with marker directly on the Sony side of the label. As already stated, D.C. Blackadar, who is an officer with the Child Exploitation Unit of the Toronto Police Service, reviewed these CDs and her evidence that they contained child pornography was not challenged.

[51] The papers and photographs in the box with these two CDs clearly belong to Mr. Davies. Although there was some confusion initially in D.C. Blackadar’s evidence about where she found a few papers, which she later confirmed were found on the table in the living room, the evidence is clear that this box contained, for example, a collection of postcards addressed to Mr. Davies, photographs that include him and a Vendor’s Permit in his name and address. Photographs of nude pubescent male boys are in the box but D.C. Blackadar could not tell the age. There are also birthday and Christmas cards addressed to “Ken”.

[52] Mr. Davies admitted that the plastic box was his and said he had packed this box and put it away, getting ready for his move. He denied that the two CDs found on top of the box belonged to him and claimed not to have any knowledge of them or the fact they were there. He said it was not his printing on these CDs. He testified that the only thing that he could think of is that they were planted by Mr. Wolfe without his knowledge although he also said that Mr. Wolfe was one of three people who could have planted these CDs on top of the box. He testified that his apartment was empty for three or four days before his arrest and during this time he was staying at his boyfriend Ben’s place and only going back to his apartment to feed his cat. However, he said they were not living together at the time. He also said that his roommate, John, was not in the apartment at the time and had told him three days earlier that he had to see him mother. This evidence was to suggest that someone would have an opportunity to break into his apartment and plant these CDs. Mr. Davies gave no evidence about a break-in however, apart from his evidence that his computers had been stolen on January 12, 2010, which for reasons already stated, I do not accept. Furthermore, if Mr. Davies was only at his apartment to feed his cat, it seems like an unusual coincidence that he was there at the time of his arrest.

[53] Mr. Davies testified that he created a fake Crime Stoppers flyer with a picture of Mr. Wolfe and that he threatened Mr. Wolfe with it by showing it to him and telling him that if he ever came to his house he would post pictures of him everywhere. It was his way of getting Mr. Wolfe to stay away from him. He said he gave this to Mr. Wolfe when he returned Mr. Wolfe’s laptop to him in December 2009. His evidence was unclear as to why he wanted Mr. Wolfe to stay away from him at this time or how this might tie into his belief that Mr. Wolfe planted CDs of child pornography in his apartment.

[54] Mr. Wolfe did not have a criminal record apart from the fraud under charge that he was facing for altering a prescription. There is no evidence to suggest that he would have risked breaking into Mr. Davies’ apartment to commit a crime. Furthermore, there is no evidence to establish that Mr. Wolfe would have had a motive to “plant” child pornography CDs in Mr. Davies’ apartment. Mr. Cawkell argued that Mr. Wolfe was released after he told police they would find child pornography at Mr. Davies’ apartment and that finding child pornography was contingent on his charges being dropped. There is no evidence to support this. There is no evidence that Mr. Wolfe had been given any promises of favour when he made his statements to police and, in fact, the evidence is to the contrary. When Mr. Wolfe gave his KGB statement he was told that his allegations against Mr. Davies would be investigated and there were no promises resulting from the information Mr. Wolfe would give. Mr. Wolfe was later released from custody but there is no evidence to suggest he was promised that his charge would be dropped if child pornography was found in Mr. Davies’ apartment. All that Mr. Wolfe knew, based on the evidence before me, is that the allegations he had made would be investigated.

[55] Even if Mr. Wolfe had an incentive to break into Mr. Davies’ apartment and plant the two CDs found by D.C. Blackadar, it makes little sense that he would go to the trouble of putting them in hard plastic cases and hiding them in the bottom of the closet. If he wanted the police to believe they were Mr. Davies’ he would likely have put Ken or something like that on the CDs. This defence theory also does not explain the CDs containing child pornography found in a box under Mr. Davies’ bed mixed with CDs that were clearly his. Mr. Davies did not suggest any of the CDs seized by D.C. Manherz had been planted. In closing submissions Mr. Cawkell suggested this when he submitted that the CDs were found strewn about, but as already explained, that was not the evidence.

[56] I have considered why two of the CDs; the ones seized by D.C. Blackadar, were packed away in a box with personal papers, given that all of the other CDs were found in the box seized by D.C. Manherz. It may be that these two CDs had sentimental value for some reason. The fact they were found on their own and that they were the only CDs that appear to have been in hard plastic cases, would support this. Mr. Davies testified that he was starting to pack. In any event, the fact that they were found on their own, hidden in a box in the bottom of the closet reinforces my conclusion that they were not planted by anyone as suggested by Mr. Davies.

[57] For all of these reasons, I find the defence theory that the CDs with child pornography found in Mr. Davies’ apartment were planted by Mr. Wolfe or someone else breaking into his apartment to have no air of reality. Given the issues I have reviewed where I have not accepted Mr. Davies’ evidence, I find that I do not accept his evidence as to how the two disks seized by D.C. Blackadar found their way into a box with his personal papers, nor does this evidence raise a reasonable doubt in my mind.

The CDs Seized by D.C. Manherz

[58] D.C. Manherz testified about the disks that he found in a clear plastic box under the bed in the loft bedroom. His evidence that this box was bolted closed with a nut was not challenged. Photos of the box were entered into evidence and D.C. Manherz testified about the disk that appears on the top of the contents of the box which is labelled “B-boys PJK”. He previewed this disk and his evidence that it was child pornography of nude prepubescent males wrestling with a focus on their genitalia was not challenged in cross-examination. As a result of what he saw on this disk, D.C. Manherz seized the entire box of CDs. He testified that there were a large number with the name Ken Davies on them. Apart from this evidence, the evidence about these CDs came from D.C. Warnock.

[59] D.C. Warnock explained how he reviewed 93 CDs and identified and classified the child pornography with the assistance of D.C. Irish. D.C. Warnock has been with the Internet Child Exploitation Unit for two years. He has been trained specifically in the sexual maturation rates in children which he uses to help identify the age of a child in an image. If he can’t tell if the child is under eighteen or not he does not consider the image to be child pornography. He testified that if it is a close call he prefers to err on the side of caution and classify the image as just a “child in photo”. Given the admissions, it is not necessary to review this evidence further.

[60] D.C. Warnock could not say what CD had what number of images. There was no one disk that had both an image of Mr. Davies and child pornography. The disks were not tested for fingerprints. D.C. Warnock did not compare the disks seized to the Excel spreadsheet but I did not find that material. None have numbers on white labels.

[61] D.C. Warnock testified about some of the CDs that were seized and they were entered into evidence, referenced by his numbering system. Mr. Davies also testified about them. Their evidence is as follows:

(a) CDs marked as Exhibit 33

[62] Disks entered as exhibit 33 contain both pictures of Mr. Davies and child pornography but not both on any one disk. D.C. Warnock could not say which disks contained child pornography and which ones just had pictures. They were considered together by D.C. Warnock as they are all disks with a gold and black Kodak CD-R Recordable Infoguard label. They all have white labels stuck to the Kodak labels, which have printed information, with the exception of disk 88. Mr. Golwalla submitted that the handwriting on these labels seems similar and asked that an inference be drawn that the child pornography CDs belong to Mr. Davies as the child pornography is on the same type of CD with the same type of labeling as the CDs that just have pictures. The labels on these CDs have printing not handwriting. It is not distinctive in any way.

[63] Mr. Davies testified that some of the CDs in this exhibit look like backup from his old system and that he does not know what is on them. He also testified that some of the handwriting on these CDs looks like his former roommate’s; Bing. He testified that Bing was better at computers than he was at one point. According to Mr. Davies, when Bing was admitted to hospital, he and a friend went through all of his “stuff” to ensure his parents did not see what he had in his room. He put his disks away until Bing got better but Bing did not and has since passed away. This evidence suggests Mr. Davies would have known what was on these disks but as he was not expressly asked if he actually viewed Bing’s CDs during this process, I did not consider this to be an admission.

(b) CDs marked as Exhibit 34

[64] Exhibit 34 is six CDs. Three of these CDs, namely 27, 62, and 92 are Kodak CD-R Recordable Infoguard with gold and black labels like those in Exhibit 33. Disks 62 and 92 are two of those disks and have child pornography. The other three disks are all made by different manufacturers. Disk 92 is labeled “BB pics” and shows pictures of young males which D.C. Warnock considered to be child pornography. The Crown submits that the writing and style of label on disk 62; namely a white piece of paper that sticks to the disc with handwriting on the label, looks the same as disk 27, which is a disk of photos of Mr. Davies labelled “Eric’s Photos Program Download”. The inference the Crown wants to draw is that these disks were copied by Mr. Davies. Again, the writing on the labels is printing and there is nothing distinctive about the printing. Disk 64 is labeled “BB boys” and has the same white label but with the handwriting in red. D.C. Warnock suggests that this was of baby boys but could not be sure it was child pornography.

[65] With respect to disk 27 which refers to Eric, Mr. Davies testified that Eric was a former lover and he assumed it was his disk but would not know until he opened it. He said that disk 62 labelled “Internet pics” could be his roommate’s or from his backup; he did not know. He testified that he did not recognize disk 64. Mr. Davies testified that disk 92 which is labelled “Files” could be a back up disk from the early 2000s, but he would need to open it to be sure. Given the Crown’s evidence that disks 62 and 92 contain child pornography, I did not consider this evidence to be much of a denial insofar as these disks were concerned.

(c) CDs marked as Exhibit 35

[66] Exhibit 35 is a collection of different brands of CD disks including disks manufactured by Maxell and Dyson but not Sony or Kodak. There is no child pornography on any of these disks. They were introduced I presume to support some of the inferences the Crown asks that I draw, for example as to whose handwriting is on the labels of CDs that do contain child pornography. The CDs that have any significance in terms of labelling are as follows: CD 22 is labelled both in marker directly on the CD as well as in white labels marked “Pics” and “Ken’s private”. Again, the writing on the labels is printing but in this case I would say the printing is different than the printing on the labels on the CDs in Exhibit 34. CD 75 has a number of markings on it in red marker including “Male Porn” and the outline of a face that is similar to one of the CDs seized by D.C. Blackadar. CD 23 is marked “Ken Files Private” in red marker, CD 80 is marked “Ken’s AGME” in black marker, CD 74 has a label “Holiday Photos and Family Photos,” CD 85 has a white label on it with a drawing of a bird marked in typing “Property of Ken Davies 2003” with a red note “MP-3”. Clearly based on the labelling, several of these CDs belong to Mr. Davies. D.C. Warnock testified that the labeling generally was pretty accurate in terms of the contents of the CDs.

[67] Mr. Davies testified that without opening these CDs he could not say if they were all his and that the writing on these CDs was not all his. Given the labelling on some of these CDs referencing Ken, and given their location, I did not accept this evidence. Clearly, Mr. Davies should have been familiar with at least some of these CDs.

(d) CDs marked as Exhibit 36

[68] Exhibit 36 contains 38 CDs. D.C. Warnock said he looked at them all and they all contain child pornography. This evidence was not challenged. Some of these CDs have various brand labels, including Maxell and Dyson and others appear to be generic. None have white labels that have been added to the CD. All are marked with marker directly on the disk, mostly in black, sometimes blue or red.

[69] Mr. Davies testified that he did not recognize these CDs and that they were not part of his pornography collection. He did not “really” recognize the handwriting on these CDs. I found this to be an interesting choice of words; it was not a firm denial.

(e) CDs marked as Exhibit 37

[70] This is disk 57 that was located by D.C. Manherz and previewed at Mr. Davies’ residence. It is a silver disk with no manufacturer’s label and contains child pornography. There is writing in marker on the disk but no white label. Mr. Davies simply said that he did not recognize this disk; again only a vague denial.

Conclusion

[71] As already stated, I find that Mr. Davies’ explanation for how the two CDs seized by D.C. Blackadar ended up in a box with his personal papers and photographs to be incredible. This is notwithstanding the fact that I have found that his evidence with respect to the hard drives raises a reasonable doubt. His evidence as a whole does not raise a reasonable doubt about his knowledge of these CDs in his possession. In addition, as I will come to, I do not accept Mr. Davies’ vague denials about knowing about the child pornography on the disks seized by D.C. Manherz. Accordingly, given the location where these two CDs were found by D.C. Blackadar, in addition to the large number of disks with child pornography found in a box under Mr. Davies’ bed, I find that the Crown has proven beyond a reasonable doubt that the CDs seized by D.C. Blackadar were in Mr. Davies’ possession.

[72] As for the CDs seized by D.C. Manherz, as I have already commented, I do not accept Mr. Davies’ vague denials or claims of lack of knowledge concerning these CDs found in a box under his bed, nor does this evidence raise a reasonable doubt. There were numerous CDs of child pornography mixed in with CDs that clearly belong to Mr. Davies and they were all in a box that was bolted closed under his bed. The fact they were not part of Mr. Davies’ legal pornography collection is consistent with Mr. Davies knowing the difference between what is legal and what is not. He would have had good reason not to have the child pornography readily available to be seen by friends if for example, he had his pornography collection out for a party. Furthermore, his personal collection of CDs with pictures from this box was not organized. Mr. Davies had only organized his legal pornography collection. Mr. Davies admitted that no one was living with him on the third floor and that this area was his space. I simply find his evidence that he was not aware of what is clearly a considerable amount of CDs with child pornography found in a box under his bed to be incredulous. His explanations for these images belonging to others or not knowing what was on the CDs were vague and unconvincing.

[73] For these reasons, with respect to the CDs seized by D.C. Manherz, I find that the Crown has proven beyond a reasonable doubt that Mr. Davies was aware that he had these CDs of child pornography in his possession and that he must have known that they contained images of child pornography. As a result, I find Mr. Davies guilty of count 1; possession of child pornography.

Has the Crown proven that Mr. Davies is also guilty of “making” child pornography?

(f) Finding of fact

[74] The theory of the Crown is that Mr. Davies is guilty of “making” child pornography as he downloaded the child pornography found on the disks in question, from the Internet, and burned it onto the disks seized by police. The first issue is whether or not the Crown has established this fact beyond a reasonable doubt.

[75] As Mr. Golwalla fairly conceded, there is no direct evidence as to how the CDs of child pornography seized by police were made. Since there were no computers in Mr. Davies’ apartment at the time of the search, the Crown has not been able to establish that it was Mr. Davies who created these CDs or that he copied the images from the Internet, by pointing to a source on a computer. Mr. Davies did admit that before his computers were stolen that he was able to download from the Internet and that he could burn disks. In fact, he said that at least 50% of his adult pornography collection had been downloaded this way. He denied, however, doing this with respect to the disks of child pornography.

[76] As I have already referred to, Mr. Golwalla asked that I draw certain inferences from the CD manufacturers and how the CDs were labelled and that I conclude the labelling on CDs personal to Mr. Davies is similar to that on the child pornography CDs and as such infer they must have been copied and labelled by him. However, I find that it is not possible to draw any conclusions from comparing the handwriting from the various white labels to conclude they were all written by the same person, let alone that they were written by Mr. Davies. Some of the printing is similar, and as I have said some is not. However, the printing is not distinctive and I am not a handwriting expert. Furthermore, there were many different types of manufactured CDs that contain child pornography.

[77] I have also considered Mr. Golwalla’s submission that the writing on the two CDs seen at the top of the silver box of legal pornography is similar to the disks of child pornography. I would add that the two CDs on the desk are labelled in the same way and they appear to be from the legal pornography collection. Again, I could not say that the handwriting on all of these disks is the same. All that is similar is that there is large printing marked directly on the CDs. However, that is not inconsistent with those disks on top of the box and on the desk being given to Mr. Davies by the same person who copied the child pornography disks. The similarity, if any, does not prove anything given I can only see four of a few hundred adult pornography disks in the pictures marked as exhibits.

[78] After examining all of the disks entered into evidence, I was not able to make solid connections between the labelling on disks that were clearly personal to Mr. Davies and the disks that contain child pornography, nor was I able to determine any other way of deciding that the child pornography CDs were copied from the Internet by Mr. Davies.

[79] For these reasons, all that I can be satisfied of, on this evidence, is that the CDs containing child pornography were in Mr. Davies’ possession. It may be that they were copied by others, including former lovers or roommates, and given to him. I simply do not know. For these reasons, the Crown has not proven beyond a reasonable doubt that the CDs that contain child pornography were copied by Mr. Davies from the Internet. On this basis, the Crown has not proven beyond a reasonable doubt that Mr. Davies made child pornography, even if “making” includes copying from the Internet.

(g) In any event is copying “making” child pornography?

[80] Even if I had found that Mr. Davies copied child pornography onto disks from his computer, I would not have concluded that by doing so he was guilty of “making” child pornography for the purposes of s. 163.1(2) of the Criminal Code. The provision reads as follows:

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days. [Emphasis added.]

[81] No appellate authority has decided this issue, and the trial courts are divided. The few existing cases in Ontario have consistently held that copying is equivalent to making and is, therefore, an offence under s. 163.1(2). However, courts in British Columbia and Alberta have expressly disagreed with this Ontario line of cases. For the reasons that follow, I find that I agree with the cases from British Columbia and Alberta.

(i) The Ontario Line of Cases

[82] The first case to consider the issue was R. v. Mohanto, [2002] O.J. No. 5840 (C.J.). In that case, the accused burned images of child pornography from his computer onto a disk. The trial judge held that he “made” child pornography by doing so. The trial judge applied the following reasoning in reaching this conclusion at paras. 59-61:

As we have said, this disk in the burner is child pornography all by itself. There is no allegation here of distribution, but this is capable of being distributed ... you could sell it, you could give it, you could loan it, you could do whatever you want with it.

So, you have this disk in your hand which constitutes child pornography. And you say to yourself: Who made it? Well, in this case, Mr. Mohanto made it. I just do not see that the argument goes any deeper than that.

[T]o me, it is just the common sense definition of making. Somebody made it, there it is. Somebody made it and it is Mr. Mohanto. And so, I am going to convict on the charge of making that disk.

[83] The trial judge focused on two facts: first, the accused was able to do more with a disk of child pornography than he could with the images on his computer; and second, the accused created something that did not previously exist, namely a disk of child pornography. The trial judge pointed out these two facts and concluded that copying the images amounted to making child pornography. See also R. v. B.W., [2002] O.J. No. 5727 (C.J.).

[84] The most recent case to consider this issue is R. v. Horvat, 2006 CanLII 13426 (ON SC), [2006] O.T.C. 388 (S.C.). The accused in that case copied child pornography onto a DVD, a CD, and a memory card. Lack J. agreed with the conclusion reached in Mohanto and added the following at paras. 14-15:

I agree that s. 163.1(2) should be interpreted in that fashion. Today data can be stored in a number of ways. It usually is first stored on the hard drive of a computer. When data from that hard drive is put on a CD or a DVD or memory cards, often the storage medium itself must be formatted or prepared to receive the data. The data must generally be selected from the available data on the hard drive. It must be processed and saved to complete the transfer. Some knowledge and skill is required. What is done, in my view, is an act of creation. The entire process is commonly referred to as "making" a disk or a DVD or a memory card.

Before the process, the data did not exist in that medium. After, the data on the disk or DVD or memory card can be used in different ways than it could have been if left on the hard drive. It can be transported without effort. It can be used on another computer, or in the case of a memory card, on an IPAQ. It can be added to, modified or deleted without changing anything on the original hard drive. It survives modification or destruction of the data on the original hard drive. All of this is common knowledge among computer users. All of this leads me to conclude that the copying of child pornography onto a DVD, the copying of child pornography onto a CD and the copying of child pornography onto memory cards on an IPAQ constitutes "making" child pornography within the meaning of s. 163.1(2).

[85] Lack J. expanded on the reasoning in Mohanto by detailing exactly how child pornography on a disk is distinct from child pornography on a computer. In addition, Lack J. focused on the fact that data must be converted from one form to another to effect the transfer of the child pornography to the other medium.

[86] These arguments have some merit on an abstract level. With respect however, in my opinion, they do not prevail when principles of statutory interpretation are applied. Such principles informed the reasoning of two courts in British Columbia and Alberta.

(ii) Alberta and British Columbia

[87] In R. v. Ballendine, 2009 BCSC 1938, the accused transferred videos of child pornography contained on his computer onto a DVD. The trial judge considered the widely accepted principle of statutory interpretation taken from E.A. Driedger in Construction of Statutes (at para. 74):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[88] This articulation of the modern approach to statutory interpretation was applied in the child pornography context in R. v. Sharpe, 2001 SCC 2.

[89] In considering the context of s. 163.1(2), the trial judge in Ballendine made the following important observation at para. 76:

As I read s. 163.1(2) in the context of s. 163.1(3), (4), and (4.1), it appears that the section creates a distinction between producers and distributors of child pornography, on the one hand, and the consumers on the other. Those who produce in the sense of causing pornography to exist and those who undertake to disseminate it to others commit aggravated offences reflected in the sentencing provisions of 163.1(2) and (3). Those who are the end users or consumers have lesser overall moral complicity and are treated differently under s. 163.1(4) and (4.1).

[90] Section 163.1(3) creates the offence of transmitting, making available, distributing, selling, advertising, importing or exporting child pornography. All of these acts involve the dissemination of child pornography. Similarly, s. 163.1(2) creates the offence of making child pornography or having the intent to disseminate or publish it. The trial judge in Ballendine noted that both sections penalize “producers” of child pornography, and noted that they share the same penalties: when prosecuted by indictment, they carry maximum terms of imprisonment of ten years and minimum terms of one year.

[91] In contrast, sections 163.1(3) and 163.1(4) create the offences of accessing and possessing child pornography. In Ballendine, the trial judge characterized these sections as “consumer” offences. They also share the same penalties, and these are lower than the “producer” offences: when prosecuted by indictment, they carry maximum terms of imprisonment of five years and a minimum term of 45 days.

[92] This analysis suggests that the child pornography offences are separated into two classes: producer offences and consumer offences. The division of these two types of offences reflects Parliament’s intent that producer offences be punished more harshly than consumer offences. This is a reasonable distinction, as producers are responsible for the widespread social harm that comes from the dissemination of child pornography, while the harm caused by consumers is isolated to their personal social circles.

[93] The offence of making child pornography is included in the section relating to the production of child pornography, and it is subject to the higher penalties associated with those offences. This means that, to equate the act of copying child pornography with the act of making child pornography, it must somehow be characterized as a producer offence and not merely a consumer offence.

[94] In my opinion, it is more natural to find that a person who copies child pornography from one medium to another for exclusively personal use is doing so as a consumer. He may do it to facilitate his access to the child pornography by increasing the variety of electronic devices it can be viewed on, or to make it more transportable, or to protect the images by backing them up in case his computer files are damaged. These actions are all consistent with those of a consumer.

[95] The Alberta Court of Queen’s Bench has added some support to the proposition that copying is not making. In R. v. Keough, 2011 ABQB 48, the accused took a mini-cassette recording of child pornography and made a VHS copy with it. He also made multiple copies of a video of child pornography. The trial judge found that this did not constitute “making” child pornography. The “making” of child pornography “involves creation of novel child pornography, that is, an instance of child pornography that is different from existing instances” (para. 232). By “novel”, the trial judge meant “child pornography [that] is different from other materials in existence” (para. 225).

[96] The trial judge looked at the surrounding Criminal Code provisions in reaching this conclusion. For example, s. 162 creates the offence of voyeurism, or the surreptitious observation or recording of a person who is in circumstances that give rise to a reasonable expectation of privacy. Specifically, s. 162(4) creates the offence of copying voyeuristic material. In short, subsection (1) creates the offence of making a recording of voyeuristic material, and subsection (4) creates a separate offence for copying voyeuristic material. Parliament does not assume that copying is subsumed within the verb “make”.

[97] After considering the context of the provision and the intention of Parliament, in my view it is reasonable to conclude that the offence of making child pornography does not include the act of copying child pornography.

(iii) Ordinary Meaning

[98] According to the modern rule of statutory interpretation, it is also important to consider the ordinary meaning of the impugned words. In my opinion, equating copying with making does not accord with our common sense understanding of these verbs.

[99] Mr. Cawkell noted three examples of the incongruity that results from equating copying with making at para. 13 of his factum:

Applying this logic, one makes music when one copies a song onto a CD. Clearly this cannot be the case- one does not make an essay if one copies another person’s essay- they have plagerized [sic] it by copying something they did not create. To apply Justice Kelly’s findings to everyday life, one would be making a sitcom every time someone recorded an episode of “Seinfeld”.

[100] The trial judge in Keough also considered the ramifications of this conclusion at para. 230:

If a person were to purchase a picture (as in a physical photograph) of pre-existing child pornography, that person would be guilty of 'possessing' child pornography (s. 163.1(4)). However, if that person were to purchase an electronic copy of that same photograph, and download that electronic copy onto his or her computer, the Ontario cases would reason that since a new 'copy' of the electronic file now exists, the downloader is now guilty of 'making' child pornography. This seems to be a very strange result, since the wrongful character of both acts are the same; a person now has and may view or otherwise use a child pornography photograph.

[101] I agree with the conclusion reached by the trial judge in Keough. There is an important distinction between copying and making according to our ordinary understanding of these verbs.

(iv) General Rules of Statutory Interpretation

[102] Lastly, I note that if any ambiguities remain after a purposive consideration of a statute with penal consequences (such as the Criminal Code), any ambiguities should be resolved in the accused’s favour: Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108 at p. 115; R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686 at para. 29.

[103] For these reasons, had it been necessary, I would have concluded that copying child pornography from one medium to another is not making child pornography for the purposes of s. 163.1(2).

[104] A second issue arose as to whether s. 163.1(2) creates the offence of making child pornography or making child pornography for the purpose of publication. Since I am not persuaded that one makes child pornography when it is copied, it is unnecessary to decide whether making child pornography must be accompanied with the intent to publish it. However, in my view, the Supreme Court of Canada implicitly decided this issue in R. v. Sharpe, supra when it held that the exceptions to the offence of possession of child pornography also applied to the offence of making child pornography: see paras. 115-117. It seems that making child pornography is an offence even in the absence of any intent to publish. The ordinary meaning of the provision also favours this conclusion: R. v. Burrows, [1995] O.J. No. 1820 (C.J.), at paras. 6-9.

Disposition

[105] Mr. Davies would you please stand.

[106] For the reasons I have given I find you guilty of counts 1 and 4. I find you not guilty of counts 2 and 3.

SPIES J.

Released: June 21, 2012

COURT FILE NO.: 11-10000282

DATE: 20120621

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

KENNETH DAVIES

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: June 21, 2012

[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[^3]: A file path is the location in a hard drive where a file resides.

Her Majesty the Queen v. Kenneth Davies, 2012 ONSC 3631

Case Summary