COURT FILE NO.: 11001
DATE: 2013/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Rows, for the Crown
- and -
GIUSEPPE MICHIENZI
Gordon Cudmore, for the Accused
HEARD: June 21, 22, and November 28, 29, 2012
BRYANT J.
I The Indictment
[1] Mr. Michienzi was charged in count 1 of a multiple count indictment that, between August 5, 2010 and February 17, 2011, without lawful excuse, he did possess child pornography in the form of a digital image file, contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] Mr. Michienzi was further charged, in counts 5 and 6, that on August 5, 2010 and January 30, 2011 respectively, without lawful excuse, he did make available child pornography in the form of a digital image file, contrary to s. 163.1(3) of the Criminal Code.
[3] Mr. Michienzi pled guilty to count 1 which was amended to include the dates of the offences alleged in counts 2 and 3. The Crown withdrew counts 2, 3, 4 and 7. The trial proceeded with respect to counts 5 and 6 on June 21 and 22, 2012 and was completed on November 28 and 29, 2012. Counsel for the accused conceded the dates of the offences, the jurisdiction of the court, and the fact that the accused owned and operated the laptop computer and other computers seized by the police. Defence counsel further agreed that the images on the laptop computer fell within the Criminal Code definition of child pornography.
II The Issue
[4] The sole issue in dispute was whether the accused had the requisite mens rea for the offence of making available child pornography.
III The Evidence of the Actus Reus
[5] Mr. Michienzi’s work colleague gave him a disc to install a software program called LimeWire on his laptop computer. This software program permits peer to peer file sharing. LimeWire may be used to lawfully transfer movies, music and other digital images from one computer to another computer. LimeWire, however, is often used to share pornographic images of children between like-minded persons in the Internet world. Special Constable (S.C.) Lipscombe, a forensic computer expert, advised that on October 26, 2010 LimeWire was shut down by the U.S.A. government for copyright infringements.
[6] On August 3, 2010, Detective (Det.) Howe of the London Police believed a computer in London, Ontario was downloading child pornography. On August 4, 2010, Det. Howe established a one-to-one connection with a computer using the same Internet Provider (IP) and IP address that was suspected of downloading pornography the previous day. He was able to view a folder containing 70 unique files, six of which were suspected to contain child pornography by reason of their hash values. Det. Howe was unable, however, to upload any files from the accused’s computer to determine if their content met the Criminal Code definition of child pornography.
[7] On August 5, 2010, Det. Howe established a direct one-to-one connection with the accused’s computer. As a result of browsing the accused’s shared folder, he found it contained 87 unique files, seven of which he believed were pornographic. Each file contained a single digital still image of a child. The officer uploaded seven files and upon viewing these files, he formed the opinion that five files contained images which met the definition of child pornography.
[8] On January 30, 2011, Police Constable (P.C.) Dann made a direct electronic connection with the accused’s computer. The officer browsed the contents of the accused’s shared folder which contained 76 unique files. The officer suspected that nine files contained pornographic images. He was able to upload two of the suspected files, which he determined contained pornographic images of children.
[9] Twenty minutes later, at 1:10 p.m., Det. Howe conducted a search of the accused’s computer. He identified 76 unique files and uploaded nine files, five of which contained pornographic images of children.
[10] On February 17, 2011, the police executed a search warrant at Mr. Michienzi’s residence and seized several computers and discs. S.C. Lipscombe acknowledged that the existence of a file in a shared folder does not necessarily mean the file is accessible to others. The police located 248 files but 149 files would be inaccessible to the average computer user because these files had been deleted. Each of these digital image files contained a single digital picture. There were also 26 unique child pornography videos, 9 accessible movies and 22 deleted movies.
[11] The police called Mr. Michienzi at work during the execution of the warrant and requested that he return to his residence. The accused arrived home shortly thereafter. He was arrested and given his right to counsel. The accused was taken to the police station and was given an opportunity to speak to a lawyer. He spoke to his lawyer and then participated in a one hour video-taped interview. P.C. Dann said that the accused was co-operative during the investigation.
(a) The LimeWire Program
[12] S.C. Lipscombe explained that, as LimeWire downloads a file located on another person’s computer, the file is first placed in the incomplete folder of the LimeWire program. When the user’s computer completes the download, the “new” file is moved to the LimeWire shared folder. Depending on the LimeWire settings on the user’s computer, the “new” folder may be shared with other persons using the LimeWire software.
[13] When the accused installed the LimeWire Pro version of the software, he followed the user friendly installation program by sequentially clicking the next button. The LimeWire default settings permit file sharing from the user’s computer. Whenever the computer is turned on, the LimeWire program is automatically activated. A user must change the default settings to prevent file sharing. For example, if the maximum upload box is set at zero, the computer will not permit file sharing.
[14] S.C. Lipscombe acknowledged that, if a user viewed an image using the LimeWire program, LimeWire software would automatically save the image. Similarly, when a user turned on his or her computer, LimeWire would permit a third party to make a copy of a file in the shared folder. A user knowledgeable about computers could change the default settings to disable the automatic save option on the LimeWire program if he or she wished to prevent third parties from uploading images in the shared file folder of the host computer.
[15] S.C. Lipscombe testified that on October 8, 2010, the LimeWire sharing feature on the accused’s laptop computer was disabled because the maximum upload value was set at zero by Mr. Michienzi or someone who had access to his laptop computer.
[16] S.C. Lipscombe testified that on January 23, 2011, LimeWire installed updated software. This installation by LimeWire would reset Mr. Michienzi’s computer settings to permit third parties to upload the files in the shared folder of the accused’s laptop computer.
[17] On February 16, 2011, LimeWire’s automatic file sharing capabilities had been disabled. S.C. Lipscombe testified that in order to change the default automatic save option, the user must go to Tools – Preferences and scroll down to the uploads option and change the settings to zero so that the file sharing feature of the LimeWire program is not operational. Accordingly, when the police executed the search warrant on February 17, 2011, the images on Mr. Michienzi’s laptop computer were not available for file sharing.
[18] S.C. Lipscombe did not know whether a third party could upload incomplete files. The expert agreed that when officers Howe and Dann were performing electronic investigations of the accused’s computer on August 4 and 5, 2010, there was no evidence that child pornography was available for sharing prior to August 3, 2010. He testified that, in comparison to other child pornography investigations, the number of images was relatively small. There were a significantly greater number of adult pornography images saved on the accused’s computers than pornographic images of children.
(b) Police interview Mr. Michienzie
[19] Mr. Michienzi voluntarily agreed to be interviewed for almost one hour by P.C. Dann about the pornographic images of children on his computer. The officer asked, challenged and probed the accused about his knowledge of computers, his interest in child pornography and whether he found such images arousing. The accused said he was curious about the images but he was not aroused by them. The accused responded to the questions he was asked and his answers were not evasive. He admitted that it was wrong to have pornographic images of children on his computer. He told the officer that he was not knowledgeable about computers. As noted, Mr. Michienzi pled guilty to the offence of possession of images of child pornography between August 5, 2010 and February 17, 2011.
[20] The evidence of the investigation was well organized and presented by P.C. Dann and S.C. Lipscombe and proved beyond a reasonable doubt that the accused possessed pornographic images of children.
IV Analysis and Decision regarding Mens Rea
[21] The maximum penalty for contravening ss. 163.1(3) is ten years imprisonment and the minimum penalty is incarceration for a period of one year. Subsection 163.1(3) creates a true criminal offence (R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299 at pp. 1302-1303). The focus of the trial was whether the accused had the requisite mental state on August 5, 2010 (count 5) and January 30, 2011(count 6). Counsel for the Crown and defence agreed that ss. 163.1(3) has a mental component but disagreed on the nature of mental element and whether the accused had the requisite mental state.
[22] Subsection 163.1(3) prohibits the distribution of child pornography. There are two basic ways to commit the offence of distribution of child pornography. The first way occurs if a person “transmits, makes available … or exports child pornography”. The second way occurs if a person “possesses for the purpose of transmission, making available … or exportation any child pornography”. The actus reus is satisfied if the Crown proves beyond a reasonable doubt one of these alternate methods of distributing child pornography. The indictment in this case particularized the means of distribution: “makes[^1] available child pornography”.
[23] Mr. Justice Martin in R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 25 O.R. (2d) 705, 101 D.L.R. (3d) 488 (C.A.) at p. 717 stated as follows:
The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent and, hence, under s. 281.2(1) is either the intentional or reckless inciting of hatred in the specified circumstances.
[24] Watt and Fuerst in Tremeear’s Criminal Code (Toronto: Carswell, 2012), define the elements of s. 163.1(3) as follows:
Under s. 163.1(3) any listed method of distribution, possession or making child pornography available is sufficient to prove the external circumstances. The mental element includes not only the intention to cause the external circumstances of the offence and knowledge of the character of the subject matter, but also, where charged, proof of the purpose of [the defendant’s] possession. (emphasis in original)
[25] The accused is charged with “makes available child pornography”. Subsection 163.1(3) does not specify the mental state for this method of distribution. A subjective mental state is presumed since the distribution of child pornography is a serious criminal offence. The gravamen of this method of distribution is knowledge of the character of the images with the intention to make the images available to others. Mr. Michienzi conceded that he knew the character of the images, namely pornographic images of children, by virtue of his guilty plea to count 1.
[26] In R. v. Pressacco, 2010 SKQB 114, 352 Sask. R. 276, Currie J. held that ss. 163.1(3) required the Crown to prove that the accused had the intent to make child pornography available (Pressacco at para. 24). In R. v. Lamb, 2010 BCSC 1911, [2010] B.C.J. No. 2701, Ehrcke J. followed Pressacco and held that the mens rea for ss. 163.1(3) is an intention to make child pornography available to others.
[27] In R. v. Spencer, 2011 SKCA 144, 377 Sask. R. 280 at paras. 51-60, leave to appeal to S.C.C. granted, [2012] S.C.C.A. No. 73, the Saskatchewan Court of Appeal reviewed the limited jurisprudence concerning the requisite mental element for the offence of distributing child pornography. The court held that ss. 163.1(3) “requires that an accused knowingly make available child pornography” (Spencer, at para. 62).
[28] I find that the Crown must prove beyond a reasonable doubt that the accused intended to make child pornography available to others as stated in the above jurisprudence.
[29] The alternative method of committing the offence occurs when a person “possesses for the purpose of…making available…any child pornography”. The common law holds that: (1) a subjective mens rea of knowledge is required for the element of possession (Beaver v. The Queen, 1957 14 (SCC), [1957] S.C.R. 531; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 15-16), and (2) a subjective state of mind of recklessness is not sufficient (R. v. Sandhu (1989), 1989 7102 (ON CA), 50 C.C.C. (3d) 492 (Ont. C.A.).
[30] The Criminal Code sometimes expresses the requirement for intent with the words “for a purpose” (Don Stuart, Canadian Criminal Law, 5th ed. (Toronto: Thomson, 2007), at pp. 223-224). The gravamen of this method of distribution of child pornography is knowledge of the images (which images satisfy the Criminal Code definition of child pornography) with the intent or purpose of making the pornographic images of children available to others (R. v. Taylor (1974), 1974 1452 (BC CA), 17 C.C.C. (2d) 36, [1974] B.C.J. No. 858 (C.A.), at p. 41).
[31] In my view, the mental state of intention is required for the alternate ways of committing the offence. Further, the mental state of recklessness is not sufficient.
[32] P.C. Dann asked the accused several times during the interview why he had pornographic images of children on his computer. He responded on each occasion that he was curious. The officer never asked the accused the reason why he was curious. It was the accused’s evidence at trial that he and his wife found images of young girls on their oldest son’s computer. He said this discovery stirred up feelings of sexual and physical abuse that Mr. Michienzi had endured as a young boy of 12 or 13. Mr. Michienzi testified that he was curious to understand why he was abused by his parents. For the past year and a half since his arrest, the accused has attended counselling sessions to deal with the matter of abuse he suffered as a young boy.
[33] Mr. Michienzi installed the current LimeWire program on his laptop computer in the summer of 2010. He testified that he was not knowledgeable about computers. He said that, if he had any problems with his computer, he would take his laptop to his workplace and give it to his colleague to take home to fix.
[34] The accused testified that he believed that file sharing could occur if he permitted another person to log onto his laptop computer. He also believed that the digital images of children he observed would not be saved if he viewed the images and then deleted them. He told the officer during his interview and testified at trial that he was not aware deleted images of children were automatically saved in the LimeWire save folder.
[35] Later Mr. Michienzi learned from his co-workers that file sharing meant that other persons would have electronic access to files saved on his computer by means of the LimeWire software. Mr. Michienzi’s colleague also told him how to prevent file sharing and gave him written instructions on how to change the settings to prevent file sharing. He testified that he changed the default settings on his laptop computer to prevent file sharing. The accused’s computer was under electronic surveillance since the late summer of 2010. The expert witness confirmed that the default settings had been changed on two occasions to prevent file sharing.
[36] Unbeknownst to the accused, LimeWire electronically installed a program update which changed the default settings to permit file sharing. Mr. Michienzi subsequently reset the upload settings to zero to prevent file sharing. S.C. Lipscombe confirmed that on February 17, 2011, the settings on the laptop computer would not allow file sharing.
[37] I find that:
a) Mr. Michienzi had limited technical knowledge of computers;
b) the accused did not know that an image observed and deleted would be saved by the LimeWire software;
c) initially, the accused did not know that the default settings permitted file sharing and that another person could upload child pornography from his computer;
d) the accused changed the default settings to prevent file sharing in the fall of 2010, after he learned from a co-worker that LimeWire software’s default settings saved images; and,
e) the expert witness opined that LimeWire’s upgrade on January 23, 2011 changed the default settings to permit file sharing and the default settings were changed after January 23, 2011 but prior to February 17, 2011 to prevent file sharing.
[38] I do not accept the submission of counsel for the Crown that the accused was wilfully blind and that, therefore, the mens rea requirement was satisfied. McIntyre J. in R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, 18 C.C.C. (3d) 223 at p. 584 defined wilful blindness as follows:
wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.
[39] The accused’s evidence during the interview and at trial shows that when the accused became aware of the need to make an inquiry he took active steps to prevent file sharing. The accused did not deliberately choose not to know something when he was given reason to believe further inquiry was necessary (R. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, 102 C.C.C. (3d) 97 at p. 111). To the contrary, he took steps to prevent others from accessing the images saved on his computer.
[40] I find the accused did not intend to make child pornography files available to other persons. The Crown has not satisfied the onus it bears. I find the accused not guilty of counts 5 and 6.
“Justice A. W. Bryant”
Justice A. W. Bryant
Released: February 27, 2013
[^1]: The indictment states “make available” but the statutory language is “makes available”. I will refer to the statutory wording of “makes available” in the analysis of mens rea.