CITATION: R. v. Bools, 2015 ONSC 1259
COURT FILE NO.: CR-12-2228-00
DATE: 2015-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRADLEY BOOLS
Defendant
Kerry Watson, for the Crown
Jack McCulligh, for the Defendant
HEARD: September 23, 24, 26, October 2, November 25, 26 2014
REASONS FOR JUDGMENT
M. J. Donohue, J.:
OVERVIEW
[1] Mr. Bools is charged with possessing and accessing child pornography and making child pornography available.
[2] The sole issue in this case is whether the accused knew his computer hard drives contained child pornographic photos and whether he was aware such images were able to be shared over the internet.
PRIOR Ruling on Statement
[3] I ruled the videotaped statement admissible. The following are my reasons: I was satisfied beyond a reasonable doubt that Mr. Bools’ cognitive capacity was not impaired and that he was capable of communicating sensibly with the officer.
[4] He occasionally asked for clarification of some questions and then answered sensibly.
[5] I noted that he appeared alert and composed. He answered questions without hesitation, although, at times, he mumbled or spoke very quietly.
THE EVIDENCE HEARD AT TRIAL
[6] The accused resides with his mother, Susan Bools. She does not use the computers located in the accused’s bedroom, and rarely enters the accused’s bedroom as he keeps his door locked.
[7] Their Internet service provider is Rogers. Their router is secured to prevent anyone else from accessing it. The parties agreed that the 58 images located by the police on the accused’s computers and identified as images of child pornography by the police meet the definition and legal test for child pornography under s. 163.1(1) (a) of the Criminal Code. The images were found on two hard drives in the accused’s bedroom
Evidence of Bradley Bools
[8] A major factor in assessing Mr. Bools’ evidence was the contrast between his recollection when answering the police and his ability to answer questions at trial.
[9] A review of particulars of his statement illustrates this. In his statement, his first question of the officer was, “What is going on with my computers?” The officer advised they would be analysed and held for a while. Mr. Bools then said, “All right, well, I don’t care about the pictures, I mean, I’ve had them ever since 2006…”.
[10] The officer asked, “…what pictures are we talking about?”. Mr. Bools replied, “Whatever pictures are there. I don’t look at pictures on my, on my computer. Everything has been there for a very long time. I don’t understand why you guys just all of a suddenly [sic] come out of nowhere and arrest me, seeing as they’ve been there for that long.”
[11] Mr. Bools further explained that he has a fetish for girl’s feet and stated, “So whether the girl is nude or not, I don’t care.”
[12] The officer said there were pictures on the computer that were not of girls’ feet. Mr. Bools asked, “Like what?” The officer gave the example of “blowjob pics.” Mr. Bools answered, “Yeah, but, uh, like a lot of whatever the young stuff, that’s been there from 2006.”
[13] He was asked what he meant by “young” and he answered, “fourteen.” He was asked if some were younger and he answered, “Uh, I don’t think I do, I don’t, I’m pretty sure. But I guess I-, suppose I do, but I just, I don’t remember.”
[14] He said he knew he had pictures of girls with clothes on them. The officer said, “But I’m talking about nude, like no clothing.” Mr. Bools answered, “Um, I don’t know, I guess.” The officer asked, “You guess? Like where did you get those pictures?” Mr. Bools answered, “From Bearshare.”
[15] Mr. Bools explained that he used to connect with no problem, but he can’t get connected anymore to Bearshare. When asked what program he uses now, he replied, “Well, I don’t download pictures anymore.”
[16] Mr. Bools was asked to describe another sharing program he installed called Limewire. He explained, “I go through my computer and I check off everything, whether it’s music, whether it’s videos, whether it’s anything. Like I have a certain folder of movies….I check off whatever and I don’t really pay attention most of the times what I check off and that’s what I end up sharing.”
[17] He agreed he was “not very discriminant” about what he shares. He agreed that he, “put everything out there” to share.
[18] Mr. Bools then said, “…you may have caught me on the, the sharing stuff, but the downloading stuff I, I don’t, I don’t, I haven’t downloaded a picture in ages.”
[19] The officer asked, “… how did you end up with pictures of naked children? Like why would, why would you have those pictures?” Mr. Bools answered, “That was from a computer that I used back in 2006.” Again, he was asked how the pictures got into his possession. Mr. Bools answered, “Well, yeah, well, obviously, I downloaded them, but that’s - as I said, that there wa-, there was a reason why I downloaded them because, you know, I, I like girls’ feet.”
[20] The officer asked why he would have pictures of nude children. Mr. Bools replied, “I don’t know. I did those back in 2006. I don’t look at them.”
[21] The officer stated that there were such images on his laptop and Mr. Bools explained that he “backed everything from that hard drive” to his laptop.
[22] Mr. Bools explained how he shared folders on Bearshare. When asked what he was sharing on Bearshare he answered, “Everything.”
[23] The officer began asking about child pornography. Mr. Bools was asked if he knew what that meant. He said it would be “underage girls naked.” He was asked roughly how many images of girls under 18 he had in his possession. He answered, “Maybe, maybe less than a 100.” The officer asked where they would find them. Mr. Bools answered, “probably under documents and pictures.” He agreed they were there in folders. The officer asked how many pictures would be of girls under age 14, and Mr. Bools answered, “If I’m guessing, less, less than 20.” He then said, “I would say less than 15.” He said they would be located in the same place.
[24] Mr. Bools explained that the hard drive from 2006 was hooked up to his computer internally.
[25] Mr. Bools said, “I normally would have a picture only for the feet, but other than-, the naked I could care less about.” The officer then asked, “So why wouldn’t you get rid of like the older pictures of the child porn?” Mr. Bools answered, “I just didn’t go through it. I, I don’t go through it. I don’t.”
[26] The officer asked why he downloaded them in the first place and Mr. Bools answered, “That was a long time ago.” He was asked why he would keep images like that, and he answered, “Just something I don’t go through, like I don’t really…” He said further, “It’s just somewhere, somewhere on my hard drive that I don’t pay attention to.”
[27] The officer asked if he had ever touched a child sexually or been tempted to do so. Mr. Bools answered, “I’m not like that, man. I’m not…” The officer countered saying, “Well, you’ve got images of child pornography in your computer.” Mr. Bools replied, “I do but-, uh, the as I said, the the, the non-foot ones I, I don’t know why I would have kept them, but the other ones then-, yeah, that’s why they’re there, because…”.
[28] The officer explained that he downloaded an image from Mr. Bools’ IP address and he found the same image on Mr. Bools computer. Mr. Bools replied, “Uh, it’s only because I backed it up, backed it up, that’s all.” The officer countered, “Okay, but you still have it. You’re still not allowed to have child pornography. It doesn’t matter why you have it. There’s no excuse as to, you know, you can’t have child pornography.” Mr. Bools replied, “Yeah, I, I know.”
[29] The officer said, “And nor can you put it in a shared folder and make it available to everybody else. ‘Cause I probably wasn’t the only person to download that, there’s probably other people out there who grabbed that picture off you. So you’re assisting in the spread of child pornography. Do you understand why that’s a problem?” Mr. Bools replied, “Yeah, I, I..”.
[30] Again the officer asked why he kept it. Mr. Bools answered, “As I said, it’s somewhere on my hard drive that I don’t pay attention to.” The officer said, “Well, it’s a pretty bad thing to ignore, no?” Mr. Bools answered, “I guess so, but it’s just like something you don’t pay attention, you don’t pay attention…..It’s just like my mom has stuff in the basement, she doesn’t do anything about it and it…pisses me off’ cause it’s in the way.”
[31] Later in the statement Mr. Bools explained that he has a camera on the front of his house because of troublemakers in the neighbourhood. He wanted to make sure they were not doing anything to his property. The officer asked if it was recording. Mr. Bools replied, “…It’s just a live view, ‘cause I’m always in my room, so.”
[32] The last relevant question posed by the officer was, “The images I was talking about before of the prepubescent girls, have you ever masturbated to their feet?” Mr. Bools responded, “Yeah, I’m sure I have.”
[33] In his statement to the police, he described himself by saying, “I’m just some lazy guy that plays videogames, you know, that’s all I do.”
[34] In contrast to his video-taped statement, at trial Mr. Bools testified that he had no knowledge of there being images of child pornography on his computer, and no knowledge that he was sharing these images on the Bearshare program.
[35] He said that he thought his answers in the statement to the police did not make sense. He thought he must have been confused when he spoke to police.
[36] When cross-examined at trial regarding the statements he made to police, he simply said that he was confused at the time the police questioned him and what images the officer meant.
[37] Mr. Bools testified that in 2005 or 2006 he had scavenged hard drives from dumpsters. He would take them home and plug them in. If they did not work, his father would assist in repairing them. He wanted to empty them to allow space to upload movies.
[38] In his evidence, he said that he knew how to download image and movie files, download and use file sharing programs, change the settings on such programs, install anti-virus programs, create folders, organize files in folders, delete files, back-up files onto his hard drives, and format hard drives. He knew how to connect his various external hard drives to his computer so they would operate as one.
[39] Mr. Bools plays the Grand Theft Auto video game. The name he gave his computer, “Zaibotsu,” is a name from that game. He was asked about the username “Quarantine,” under which a number of the offending images were stored. He stated that he was not the username “Quarantine”.
Possession
[40] At trial, Mr. Bools testified that there were three hard drives attached to his computer. He said he attached one in 2008 and the other two in 2011, perhaps two months before the police arrived.
[41] Mr. Bools said he obtained hard drive #2 from a dumpster in 2005 or 2006. He testified this was one of the drives he attached in early 2011. He said that he was sorting through what was on the drive by file types, deleting what he did not want, and organizing various file types into folders. He wanted to format the whole hard drive and fill it with movies. He would then sort through the folder and delete what was not his. He said he had not had the chance to go through everything.
[42] As such, he said he was not aware that there were images of child pornography. He said he never recalled opening a child pornography file.
[43] Mr. Bools’ testimony was that the child pornography on his computer must have come from the scavenged hard drives.
[44] He was asked about a child model called Danika. The Danika program, he said, came as a result of downloading a “torrent.” He said the Danika program contained images of a girl. He said the girl was clothed in every image he saw. He thought there were roughly less than 100 images of her. He had them since his previous laptop in 2007.
[45] When shown the forensic report that indicated that his files were listed in folders with suggestive file names, he said he thought they must be photo-shopped by the police.
[46] He said he did not know what PTHC or PTSC stood for. Police expert evidence later indicated that these initials mean “Pre Teen Hard Core” and “Pre Teen Soft Core.”
Sharing
[47] Mr. Bools’ evidence at trial is that he put the Bearshare program on his computer in 2008. In early 2009, he was having a problem downloading from Bearshare and no one could upload from him. Since then, he said he kept the Bearshare program on, hoping it would connect, but it did not.
[48] His stated reason for using Bearshare was to download movies.
[49] Mr. Bools admitted that he has a foot fetish. He said that he had images on his computer of children because he liked their feet.
[50] In cross-examination, he was shown how his Bearshare “Shared File” folders contained things he admitted to being interested in, such as movies and images for a foot fetish. The folders where he accessed movies also contained files such as “…lolitas on couch pthc nude naken foot fetish feet tyflas papaka.jpg.” and “5YO girl drulling with cum from big blow job mafia sex 186.jgp.” He said he might not have noticed them and that the file name often does not accurately describe what is in the file.
[51] Mr. Bools understood that the purpose of Bearshare was to download files for free and to share files for free. He understood how to change the settings on the program and agreed he did do some adjustments to the settings. He left the sharing setting to the default setting of “My Downloads” – which meant that everything he downloaded would be shared. He understood that he would download to that folder and share from that folder. He knew how to delete files from his computer. He knew how to prevent files from being shared if he chose to do so.
Credibility
[52] There were a number of contradictions in his testimony. He testified in chief that he did not know about any anti-virus software on his computer. His desktop, however, contained “Anti-Virus Control Centre” and “Spyware Doctor,” both of which he later agreed were anti-virus programs that he installed.
[53] With respect to Hard Drive #1, Mr. Bools admitted to using the name “Zaibatsu,” but denied that he created the user name “Quarantine,” under which the objectionable images were stored. Yet he stored his personal resume in one of the folders under the filename “Quarantine\My Documents\me.JPG.” His resume states to reach him at ZAIBATSU.-@HOTMAIL.COM. The screen shot of his computer shows the computer’s unique identifier as “User Name: Quarantine”; “Full Name: Zaibatsu.” He was not able to explain how he could be one but not the other.
[54] With respect to Hard Drive #2, Mr. Bools testified that his father, in cleaning up the dumpster hard drive, had edited the registry and so changed the name of the computer prior to the arrival of the police. The forensic report confirms, however, that the registry for Hard Drive #2 was last written in January 27, 2008, with the user name “Bradley Bools.”
[55] Mr. Bools testified that the Bearshare program was not working, but he kept it on for over two years in the hope that it would. As noted below, the officer was able to download the offending images from his computer via Bearshare, indicating it was working.
[56] In contrast to his testimony of never recalling opening a child pornography file or knowing he possessed child pornography is his statement to police. In his statement, he admitted that he had the images in question since 2006. He was clear in the video interview that he knew he had such images and knew he shared everything on line.
Testimony of Chris MacDonald
[57] Officer Chris MacDonald, investigator, attended on the arrest of the accused and the seizure of the hard drives and computers.
[58] When he arrived in Mr. Bools’ bedroom at his residence, he observed a powered-on, running computer. He observed the distinctive icons of two software programs that were running: Bearshare and Vuse. The Bearshare icon is a bear’s head wearing headphones. The Vuse icon is a small frog. He was aware that both programs are peer-to-peer file sharing programs.
Testimony of Andrew Ullock
[59] Officer Ullock, the investigating officer, was working with the Internet Child Exploitation Unit at the time of the accused’s arrest.
[60] His evidence was largely unchallenged.
[61] Through the Child Protection system (“CPS”) tool he found that Mr. Bools’ IP address came up as the worst offender of child pornography images being shared on peer-to-peer sharing programs, in the area of Mississauga.
[62] The program allowed the officer to download a number of offending images from Mr. Bools’ IP address on July 9 and July 10, 2011. The program confirms that the person sharing any images was online at that time. The images had been shared via the Bearshare sharing program.
[63] On the arrest date, before speaking with Mr. Bools, Officer Ullock did some preliminary examination of the seized computers. He observed some of the images he had downloaded using the CPS program to be the same images on the accused’s computer.
[64] He then interviewed Mr. Bools and took the videotaped statement noted above.
[65] The officer reviewed the history of Mr. Bools’ computer and found that the hash value or “fingerprint” of a file located on it matched the file that the officer had downloaded on July 10, 2011.
[66] His conclusion was that Mr. Bools, therefore, made these images available on Bearshare.
EXPERT EVIDENCE
Testimony of Kevin Shaidle
[67] Constable Shaidle gave expert testimony on behalf of the Crown in the area of forensic computer analysis. He found evidence of child pornography on two of the three hard drives he analyzed. He found no evidence that an outside party could have accessed the computer or downloaded the images of pornography. He concluded that Mr. Bools was the user Zaibatsu and the user Quarantine. He found images of pornography, including two that had been recently viewed, as well as other questionable imagery in these files. The officer confirmed that the Bearshare program would have access to the files on both hard drives.
[68] His investigation was initially conducted by copying all the data to create a virtual machine copy of everything on the computer, down to the last byte. The process provides an objective picture of the entire computer contents. His actions cannot affect or change the file content.
[69] Constable Shaidle did a virus check and found four malicious software programs. In his opinion, the user had already quarantined two of the viruses. He found no evidence that a virus could have downloaded these images onto the computer.
[70] He found that Hard Drive #1 had a registered owner name of Zaibatsu. That is the name of an Asian gang in the video game “Grand Theft Auto.” The computer had that game in several forms. The screen saver was a Grand Theft Auto screen shot. The officer considered that the user was an avid player.
[71] He found that the user name on the hard drive was “Quarantine.” He found that the Quarantine user also uses the full name of Zaibatsu, indicating that Quarantine and Zaibatsu are the same user.
[72] A file entitled “Quarantine\My Documents\me.JPG.” contained Mr. Bools personal resume, which stated “reach me at”…”ZAIBATSU.-@HOTMAIL.COM”. The screen shot of his computer shows the computer’s unique identifier as “User Name: Quarantine”; “Full Name: Zaibatsu.” The officer, therefore, concluded that Mr. Bools was the user Zaibatsu and the user Quarantine.
[73] On Hard Drive #2, he located 13 images of child pornography. The file names contained known keywords and names indicative of child pornography. One example includes “lolitas on couch pthc nude naken foot fetish feet tyflas papaka.jpg.” Another example is “5YO girl drulling with cum from big blow job mafia sex 186.jpg.” All 13 images were located in the “c:\My Downloads” folder. This was the folder that was shared in the Bearshare program by default.
[74] “Lolita” in child pornography investigations has been found to mean “young.”
[75] A number of the images were located within a personal folder named “BradleyBools\MyDocuments\Porn\PornoHC(Pics)\Celebrities\LSMagazine Models.”
[76] In the “My Recent Documents” list, 13 images of child pornography were shown to be recently viewed. The user would have, therefore, accessed those two files “recently.” One recently viewed image was the example noted above - “lolitas on couch pthc nude naken foot fetish feet tyflas papaka.jpg.” Some of the images were last accessed between July 11 and July 14, 2011, just before Mr. Bools’ arrest.
[77] Other files found contained what would be considered as questionable images. They were located in the file directories under “C:Documents and Settings\Documents” and “Settings\Quarantine\MyDocuments\Azureus Downloads\WebeModelDanikaSets9-16and22-23-30\WebeModelDanikaSet23\Danika Model set 23-PIC 046.jpg. These files contain image names indicative of child pornography. One example was “Danika Pthc Child Super Model Bikini Sexy As Hell-Child Porn Lolita Loli Little Girl Teen Preteen Underage Pedo Chica Lolita Loli Little Girl Teen 07.jpg.” Another example was “danika_PTHCChild SUPER MODEL_bikini sexy as hell-child porn Lolita loli little girl teen preteen underage pedo.jpg.”
[78] The Constable testified that the operating system was Windows XP, which provides thumbnail images of the files in each folder. In his opinion, if Mr. Bools was simply browsing his files, the thumbnail images would show him the pornographic image and bring to his attention that it should be deleted.
[79] When the Bearshare program is installed, the default settings can be changed by the user. Officer Shaidle noted that the user had changed some of the default settings to, for example, change the number of users that can queue to wait to browse the user’s library. However, the default setting of sharing “My Downloads” was not changed.
[80] As both Hard Drive #1 and #2 were connected to Mr. Bools’ Dell computer and operated as one system, the officer confirmed that the Bearshare program would have access to the files on both hard drives.
Testimony of Brian Cole
[81] Mr. Cole was a computer expert who analysed the hard drives on behalf of the defence.
[82] He found a number of serious viruses on the drives.
[83] One virus was a “Trojan” virus that infected the computer when the user downloaded a file called S:\Users\Owner\Pentium 3 Computer\Porn\Porno(Clips)\Brian Banks – Hot teen in bikini raped on bed.mpg;file:_S.
[84] His conclusion was that the viruses did not appear to affect the core operating system, but rather peripheral files. There did not appear to be any specific security threats present that would “facilitate unauthorized external control of the computer via its internet connection.” His conclusion was the same as the police’s conclusion in this regard - that this was not a case where an external person accessed the computer and downloaded the child pornography on to it.
[85] He could not conclude where the child pornography files had come from (whether they were downloaded from the Internet, copied from an external source, etc..)
[86] It appeared to Mr. Cole that these files were collected and indexed into a logical hierarchy under the default Windows folder entitled “My Pictures,” as opposed to automatically being stored by a program in some general “download” directory.
[87] He confirmed that the user would have to create the folders and organize the files in the folders.
[88] Mr. Cole confirmed that the purpose of a Bearshare program is to share with other users, and that if Bearshare is connecting and sharing, then it is working.
[89] Mr. Cole agreed that when using Bearshare, which is a peer to peer sharing program, it is the user who decides what is shared. He agreed that the user is cautioned that if s/he does not want to share something in a folder, then s/he is to deselect it or delete it from the shared folder.
[90] Mr. Cole confirmed that the programs used by the police produce an exact replica of what the drive itself contains, including all folders and files down to the byte level. He said it would not be photo-shopped.
[91] In sum, the evidence of Mr. Cole supported the evidence of the expert for the Crown, Constable Shaidle.
THE LAW
Possession
[92] Both knowledge and control are essential elements to a finding of possession of child pornography: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 [Morelli].
Knowledge
[93] To establish the requisite knowledge, the Crown must prove that the accused had knowledge of the criminal character of the item in issue, and thus was aware of the general qualities of the files that might make them child pornography, or be reckless or wilfully blind to these qualities: R. v. Chalk, 2007 ONCA 815, [2007] O.J. No. 4627 (C.A.) [Chalk] at para. 18.
[94] The Crown need not prove that the accused knew the files met the legal definition of child pornography: Chalk at para. 18.
[95] The defence here concedes that the 58 images found on the hard drives of Mr. Bools meet the legal definition of child pornography.
[96] Knowledge of the objectionable images can be inferred through circumstantial evidence, such as ownership, the level of usage of the computer in question, the level of computer literacy of the accused, whether the file names for the images were descriptive, the organization of files, and the accused’s knowledge of the location of the files on the computer: R. v. Braudy [2009] O.J. No. 347, 81 W.C.B. (2d) 561 (S.C.J.) [Braudy] at paras 51-52; R. v. Douglas, 2013 SKQB 33, [2013] S.J. No. 59 (Q.B.) [Douglas] at paras 79, 85, 90-93; R. v. Benson, 2010 SKQB 459, [2010] S.J. No. 758 [Bensen] at paras 28, 30; R. v. Connor, [2009] O.J. No. 3828, , 84 W.C.B. (2d) 904 (S.C.J.) [Connor] at paras 27, 117, 121-122.
[97] Where the file names of the objectionable images strongly suggest child pornography content, an inference of knowledge will be strong: Douglas at para. 94).
Control
[98] The Crown must prove that the accused had a measure of control over the item at issue. Control refers to power or authority over the item, whether exercised or not: Chalk at para. 19.
[99] The defence admitted that Mr. Bools had control of the computers and that his mother did not use or control the computers. The defence also admitted that neither his friends nor anyone else had use or control of his computer.
Inadvertent Downloading
[100] In R. v. Somogyi, 2010 ONSC 5585, [2010] O.J. No. 5797 (S.C.J.) at para. 170, the Court discussed the argument that the offensive images appeared on the computer due to web-browsing software, spyware, pop-up sites, or viruses. The Court stated, “the Ontario Superior Court of Justice has held against these types of bald assertions without supporting evidence.” In Braudy at para. 55, Stinson J. commented on the need for evidence to establish or support a defence theory of inadvertent downloading:
…as noted in R. v. Jenner (2005), 2005 MBCA 44, 195 C.C.C. (3d) 364 (Man. C.A.) at para. 21, triers of fact ought not to attach weight to exculpatory theories in the absence of evidence to support these theories. Thus, where there is little evidence to support the inadvertent-downloading theory, the normal presumption that one intends the consequences of one’s action will apply: see R. v. Missions, 2005 NSCA 82, [2005] N.S.J. No. 177 (N.S. C.A.) at para. 21.
Accessing Child Pornography
[101] The offence of accessing child pornography captures a situation in which an accused does not take possession of the digital image file, i.e. does not download the file, but merely views it. It requires proof that the accused person viewed, or had the image transmitted to him with knowledge of the contents. The Crown must prove that the accused had knowledge of the criminal character of the item in issue and thus was aware of the general qualities of the files that might make them child pornography (Morelli at paras 14, 25-26).
Making Available Child Pornography
[102] The Supreme Court of Canada recently confirmed that there is no requirement that the accused take any positive step to make child pornography available beyond using a file sharing program that permits the sharing of files and either passively acquiesces to the sharing of the files or is wilfully blind to the sharing feature of the program used (R. v Spencer, 2014 SCC 43, [2014] S.C.J. No. 43 at paras 83 - 85).
[103] The Crown need not prove that the accused had an interest in active distribution, or even that he had a particular interest in sharing files with others. The Crown need only show that the accused knew that his participation on the sharing program would permit others to access his files (R. v. Mallory, 2008 (S.C.J.) at para. 24 (unreported); Connor at para. 131).
[104] As in Benson, the fact that the officer was able to download the material from the accused’s computer over Bearshare’s peer-to-peer network establishes that it was made available for sharing over the program (see para. 30).
W.D. Analysis
[105] There is no onus on an accused to disprove the Crown’s case. As always, the court must be guided by the approach set by the Supreme Court of Canada in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-58. In assessing the evidence, if I do not believe the defendant, and his evidence does not leave me with a reasonable doubt, he can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.
THE POSITION OF THE PARTIES
[106] It is the Crown’s position that the forensic evidence establishes that the computer and both hard drives #1 and #2 were in the sole ownership and control of Mr. Bools, and that both hard drives contained images of child pornography, which were demonstrated to be available for sharing on the Bearshare program.
[107] The Crown’s position is that knowledge of possession was demonstrated by Mr. Bools’ voluntary statement to police, his computer experience, the organization of the images under names indicative of child pornography, and the recent viewing history on his computer.
[108] The defence conceded that Mr. Bools had control of the computers and that the images found therein met the definition of child pornography. The defence relies on the evidence of Mr. Bools scavenging old hard drives to assert that the images must have come from them. His evidence was that he had not opened all the files and so did not know what they contained.
[109] The defence submits that Mr. Bools had no knowledge of objectionable images being in his possession, and, as such, he could not know he was sharing them or making them accessible.
ANALYSIS
[110] Mr. Bools’ denial of knowledge at trial is not credible.
[111] I found Mr. Bools was not forthright with the court in light of the contradictions in his testimony. Mr. Bools’ evidence at trial was often confused and non-responsive to the questions asked of him. This is in stark contrast to his very candid and clear answers regarding his knowledge in his video statement.
[112] For these reasons, Mr. Bools’ trial testimony of his denying all knowledge of these images being on his computer is not acceptable. The defence evidence does not raise a reasonable doubt in my mind.
Count 1: Possession of Child Pornography
[113] It was submitted by the defence that viruses found in the computer by both experts may have planted the objectionable images. Both experts testified that there is no evidence of this. The organization of the file names and folders further disputes an “automatic” download by an outside party.
[114] Regardless of whether the offending images were already stored on the dumpster hard drives or whether they were downloaded from the internet, the way in which they were organized and stored satisfies me beyond a reasonable doubt that Mr. Bools knew that he possessed such images.
[115] The evidence of Mr. Bools in his video statement establishes his knowledge of the types of images he had on his computer for some time. It establishes that he shared everything on the Bearshare program. He acknowledged to the officer that he knew he possessed child pornography but simply was not interested in it. He had just not gotten around to deleting the files.
[116] The evidence is that Mr. Bools spends all his time in his room on his computer. He demonstrated good computer literacy and competency in connecting three hard drives to one desktop, emptying out hard drives, making folders for files, moving files and folders, organizing file folders, downloading movies, torrents, and images, downloading peer-to-peer sharing programs, and changing program default settings.
[117] The evidence of both experts was that the files were organized, collected, and indexed under the Windows “My Pictures” folder, and that they would not have downloaded automatically in that fashion. As Mr. Bools was the sole user of his computers, I find that he organized the files in that manner.
[118] The organization of images under a personal folder named “Bradley Bools\MyDocuments\Porn\PornoHD(Pics)\Celebrities\LSMagazineModels,” which contained some of the offending images, shows a purposeful selecting of the images he particularly wanted to keep, label, store, and access. The image file names were also descriptive of the objectionable content.
[119] This supports his knowledge of the content of such images.
[120] Constable Shaidle noted that the thumbnail images would show the type of file in the folder even without opening it when one was browsing the computer.
[121] Mr. Bools is on disability for depression. He spends all his time in his room on his computer. As such, I find he would have a very thorough knowledge of his computer.
[122] I, therefore, find that he had knowledge of the child pornography found on his hard drives.
[123] I am satisfied beyond a reasonable doubt that the Crown has proven the element of knowledge.
Count #2 Accessing Child Pornography
[124] As I have found that Mr. Bools was in possession of child pornography, it is implicit that he transmitted the material to himself or viewed the material. He stated to police that he “obviously downloaded” the images of child pornography years earlier in 2006. He viewed the images of child pornography, as confirmed by Constable Shaidle’s date and time stamps of individual files that were “last accessed.”
[125] The forensic evidence demonstrated that the user had opened and viewed some of the offending images, as they were listed in “My Recent Documents.” Some of the images had last been accessed between July 11 and July 14, 2011.
[126] There is no evidence of any user of the computer other than Mr. Bools. The evidence leads to the conclusion that he was the only one who accessed the computer.
Count#3 Making Available Child Pornography
[127] Mr. Bools had child pornography on his computer. He allowed full access to all his files on the sharing program of Bearshare. He knew enough to alter some of the settings on Bearshare, but made no effort to narrow what was available to others.
[128] Although Mr. Bools testified that Bearshare was not working, the officers confirmed that Bearshare was working and running when the computer was seized.
[129] Constable Ullock was able to download the images from Mr. Bools’ computer via Bearshare just days before the computer was seized and was only able to do so when the user, Mr. Bools, was online and sharing files. Brian Cole, the defence’s expert, agreed that if Bearshare was sharing with other users then it was working.
[130] As Constable Ullock was able to download the images, I find that Mr. Bools made them available.
[131] My finding is consistent with Mr. Bools own video statement that he shared “everything” on his computer.
CONCLUSION
[132] I find Mr. Bools had knowledge that he possessed child pornography images on his computer, accessed these images, and made them available on the Bearshare peer-to-peer sharing program.
[133] Accordingly, Mr. Bools is found guilty on all three counts.
M.J. Donohue, J.
Released: February 26, 2015
CITATION: R. v. Bools, 2015 ONSC 1259
COURT FILE NO.: CR-12-2228-00
DATE: 2015-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRADLEY BOOLS
REASONS FOR JUDGMENT
M.J. Donohue, J.
Released: February 26, 2015