R. v. Carlos, 2015 ONSC 6070

COURT FILE NO.: CR-15-0038J

DATE: 2015-10-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSUE NATAL CARLOS

Defendant

Monica MacKenzie, for the Crown

Robert Brooks, for the Defendant

HEARD: June 16, 17, 18, September 21, 22, 2015

REASONS FOR JUDGMENT

M. J. Donohue, J.:

OVERVIEW

[1] Mr. Natal Carlos is charged with possession of child pornography between February 17, 2013, and April 4, 2013. He is also charged with making child pornography available between February 17, 2013, and March 5, 2013.

[2] The sole issue is Mr. Natal Carlos’ knowledge. Did he know that the search terms he used to obtain this offensive material would produce child pornography. Did he know it would be stored in his shared folders and be available on the sharing network. Did he know the files would remain stored and backed up on his computer.

EVIDENCE OF THE INVESTIGATION

[3] The I.C.E. unit was able to download a number of child pornography videos from Mr. Natal Carlos’ Acer computer via a sharing network called Ares.

[4] Pursuant to a search warrant, police seized the Acer laptop and an external back up device called WD Anywhere Back Up. The laptop had one user account, with the accused’s name, Josue. It was password protected.

[5] On examination the laptop was found to contain a number of child pornographic images and videos, downloaded February 17, 18, and March 5, 2013. The laptop was equipped with one physical hard drive but with two partitions for two drives; a C drive and a D drive. The D drive backed up anything downloaded to the C drive. The device, WD Anywhere, further backed up the files. A pop up screen for WD Anywhere noted files successfully backed up. Both the laptop and this external hard drive contained child pornography.

[6] The windows media player had a jump list for recently opened files. The last ten videos all had names suggestive of child pornography, and each had been opened to view.

[7] The videos were deleted from the C drive on March 10, 2013.

[8] The registry file of the D drive had 26 entries with titles suggestive of child pornography which had completed downloading. There were 238 files in the shared folder of the D drive that were suggestive of child pornography.

[9] Within the shared folder of complete files, 12 videos were classified as child pornography; 2 videos were child pornography indicative; 9 items would not open but the names were indicative of child pornography and 3 videos were adult porn. The incomplete files had 38 videos classified as child pornography, 9 videos were child pornography indicative and 156 files were not viewable and so could not be classified, but the file names were indicative of child pornography.

[10] The defence viewed the videos and agreed that the content is properly classified as child pornography.

[11] The user of the laptop had done searches in February/March 2013, in the Ares file sharing program using the terms, PTHC, PTHC Mikael and PTHC Tara. PTHC is the acronym for preteenhardcore and is the common search term for child pornography. This term had 85,980 “total hits” in Mr. Natal Carlos’ computer, either as a file name, log file or shortcut.

[12] The investigation also determined that the laptop had the Ares file-sharing program on an earlier operating system. From that system a registry showed 663 files were downloaded and shareable. The dates of those downloads ranged from February 27, 2011, to October 29, 2011. The majority of those downloads had file names suggestive of child pornography. The titles included PTHC, Tara, and Mikael, among other graphic wording suggesting their content. There were 37 different search terms used that were indicative of someone looking specifically for child pornography. The old operating system also had statements, documents, photos and immigration papers which indicated the user was Mr. Natal Carlos.

THE EVIDENCE HEARD AT TRIAL REGARDING KNOWLEDGE

[13] Mr. Natal Carlos was born in Brazil and came to Canada on March 30, 2009. His first language is Portuguese. He testified in English without a translator.

[14] Mr. Natal Carlos testified at trial that in February 2013, he was searching for adult pornography on the Internet. He was looking for an adult porn star he had heard of named Tara. In his search he located a video for which he would have to pay to view. He recalled that he had the Ares file-sharing program and decided to see if the video was available, for free, on Ares.

[15] The search terms which he used, in Ares, were PTHC, Mikael PTHC and Tara PTHC. He observed a number of titles from these search titles and downloaded them. When he opened the videos he found that they were child pornography and he deleted them. His evidence was that he opened them on March 10, 2013, and promptly deleted them.

[16] Mr. Natal Carlos testified that he had no idea what PTHC meant. He said he had never typed in PTHC before February 2013 and the prior evidence of it must have been done by others who had access to his computer. He typed in PTHC on this occasion because it had appeared as part of his search for Tara Porn Star.

[17] In his statement three weeks later with police, Mr. Natal Carlos did not give this explanation of his innocent search for adult pornography. He said he did not know who “Tara” was.

[18] A Google search of “tara porn star actress” reveals the words; “9 yo….pthc….child porn stars….pre teen porn” in the description. Mr. Natal Carlos denies reading those descriptions. He denied knowing that “9 yo” or “9 yr” referred to age.

SHARING

[19] Mr. Natal-Carlos testified that he used the Ares peer-to-peer program to obtain music and videos for free. He understood it was a file-sharing program. He had the Ares program on his previous operating system and he again installed it on his current operating system. He understood that what was in “MySharedFolders” was available to be shared through other users of Ares. He testified that he knew “file sharing” meant “sharing files”.

[20] Mr. Natal Carlos understood that when he downloaded from Ares it automatically went directly to the shared folder.

SAVING

[21] Mr. Natal Carlos said that he set up the WD Anywhere external hard drive to automatically back up whatever was on his laptop. He was concerned about losing all his files in case his laptop crashed. He further testified that he thought that when he deleted files, they were also deleted from the back up device.

[22] He acknowledged that, as the D drive backed up the C drive, and the WD Anywhere Back Up did an automatic back up of his files, he had two back-up systems.

CONTROL

[23] Mr. Natal Carlos was asked whether there were times when the laptop was not exclusively under his control. He listed a number of times when it was out of his hands and his password was shared.

[24] He testified that when he first bought the laptop in 2009, it had a windows product he did not like. He left the laptop with a co-worker for four or five days to downgrade the windows program. This co-worker is now in Brazil. In September 2009, he took the laptop to Best Buy and left it there for evaluation and repair for five days. They were unable to repair it and so he took it to Future Shop and left it for five days. He later took it to the Mississauga Acer factory and left it for a week to be worked on.

[25] He stated that he travelled to Brazil and forgot his laptop with his parents between January 2011, and May 6, 2011. His 12 and 13-year-old sons also resided there and had access to the laptop.

[26] In June or July 2012, on a trip to Chicago he said his laptop was open to his friend’s family for a week.

REPAIR RECORDS

[27] In reply evidence, the Crown called an employee of Best Buy who had worked there since 2009, when Best Buy also owned Future Shop. He testified that when a computer was brought in for service or repair a record was created with the customer’s name, phone, address and email with log notes of what was done or if the problem was not fixed. A search of their records using Mr. Natal Carlos’ name and two different phone numbers did not disclose any such repair record.

THE LAW

Possession

[28] 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

[29] 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.

[30] The Crown need not prove that the accused knew the files met the legal definition of child pornography: Chalk at para. 18.

[31] The defence here concedes that the videos found on the laptop of Mr. Natal Carlos meet the legal definition of child pornography.

[32] 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.

[33] 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

[34] 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.

[35] Mr. Natal Carlos acknowledged control of his laptop in the period of time that the search, downloads and sharing were done. He disputes control of his laptop for the period from January to May 6, 2011, when he testified that he left it in Brazil at his parents’ home.

Making Available Child Pornography

[36] 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).

[37] 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).

[38] As in Benson, the fact that the officer was able to download the material from the accused’s computer over Ares’ peer-to-peer network establishes that it was made available for sharing over the program (see para. 30).

W.D. Analysis

[39] 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 evidence which I do accept proves guilt beyond a reasonable doubt.

THE POSITION OF THE PARTIES

[40] It is the Crown’s position that the forensic evidence establishes all the elements of the offences.

[41] The Crown’s position is that Mr. Natal Carlos was the primary user of both the current and previous operating systems on this laptop. The Crown submits that the similarity of search terms on the old operating system and the new make it clear that the same person was searching for this content. The Crown submits that the evidence supports an intentional search for child pornography and intentional downloads, that he viewed at least ten of the videos, and allowed the files to remain in his MySharedFolder.

[42] The defence relies on the evidence of Mr. Natal Carlos -- his innocent search for adult pornography. His evidence was that as soon as he opened the files and determined their objectionable content he deleted them. To the extent that there are other searches and downloads on the computer related to PTHC there were opportunities by repairpersons, and/or family in Brazil, who had his password and may be responsible.

ANALYSIS

[43] Mr. Natal Carlos’ denial of knowledge is not credible.

Credibility

[44] There were a number of inconsistencies which made Mr. Natal Carlos not credible.

[45] In contrast to his trial testimony, Mr. Natal Carlos told the investigating officer that he last used the Ares file-sharing three months before; that he did not remember typing in “Tara”; that he did not know who “Tara” was; that he did not type in “PTHC”.

[46] In contrast to his demonstration of a working knowledge of computers, Mr. Natal Carlos said that he thought when he deleted items from his C drive it would also delete on the back up drive and the external drive; that he did not agree that the more search terms you string together, the narrower the search (such as PTHC Mikael); denied at first that he knew WD Anywhere Back Up would back up his files. I found these denials against common computer knowledge.

[47] Mr. Natal Carlos acknowledged that when the search results gave a list of titles you had to choose and ‘click’ on a title to download it. He then testified that he did not read the titles. I find this makes no sense.

Understanding of Computers

[48] Mr. Natal Carlos installed the Ares file-sharing program. He was able to download Office 2010 and install Skype as well as iTunes Adobe Reader. He set up his computer software and his financial and banking documents in files and folders as well as his immigration documents. He purchased and set up the WD Anywhere Back up device for a number of devices in his home. Mr. Natal Carlos agreed it was a fairly well organized computer. He dealt with computerized equipment through his work.

[49] I found Mr. Natal Carlos to demonstrate good computer literacy and ability.

[50] I did not find him credible when he said he did not know he would have do further deletions of the WD Anywhere Back Up device.

Language

[51] Although his first language is Portuguese, he testified in English without a translator. He works as a service technician for a U.S. company for its Burlington, Ontario location. Although he made some grammatical errors he was articulate and clear in his testimony. He testified that his English was not fluent and so he did not understand the titles he was reading, however, his vocabulary and fluency were more sophisticated than the basic titles of these videos.

[52] The file names of the videos downloaded on February 17, 18, and March 10, 2013, were obvious. Titles such as “8 yo girl gives blowjob”; “lil’daughter & dad I fuck my sdoughter”; “Mikael Bound college dude fucks his little brother” and “tara 8 yr. she loves sucking daddy’s dick” do not leave any doubt as to their likely content.

[53] On cross-examination, Mr. Natal Carlos said he did not understand the Spanish search titles and stated, “I don’t speak Spanish, not at all.” He refused to agree that he even had a working knowledge of Spanish. His resume, however, had a section entitled, “Languages I am able to speak”. On the list was “Spanish: Good knowledge”. Although he may have exaggerated I am satisfied he would understand simple terms such as “9 anos” meaning “9 years”.

[54] Although he stated he did not know that “8 yo” and “8 yr” referred to age, the titles of the downloads are replete with references to children; “little brother”, “Thai little boy & girl” “lil’ daughter & dad”; “9 yr & daddy”; “sexo infantile”; “12 yo girl-garota de 12 anos”, “15y blowjob”; “spank kid”; “boy 9y & man”.

[55] I do not find his evidence that he was unaware of the content of the downloads to be credible.

Old Operating System Search Terms

[56] The 663 files located on the old operating system were almost all indicative of child pornography. There were downloads of objectionable content almost daily from February 27, 2011, to July 7, 2011. The terms PTHC, Tara, and Mikael are found throughout.

[57] Mr. Natal Carlos testified that his laptop was in Brazil from January to May 6, 2011. He did not testify that he had any remote access to the laptop. Reply evidence confirmed use of the computer to review his email, log into his credit card account, download his statements, scan in immigration documents and move files into folders during this time frame. I conclude that Mr. Natal Carlos did have his laptop in his possession for that time frame.

[58] The time frame after May 6, 2011, to July 7, 2011, when Mr. Natal Carlos did have his laptop, on his evidence, also has titles suggestive of child pornography searches, particularly “PTHC” and “Tara”. Mr. Natal Carlos suggested those were from slow downloads searched in the earlier time frame when he said the laptop was not in his possession. I do not find it reasonable to suggest that it would take weeks or months for such files to download.

[59] In light of the similarity of the file names and content of the 663 files on the older operating system with the searches and downloads done in February 2013, I find that Mr. Natal Carlos knew exactly what he was searching for and, downloading into his “MySharedFolders”.

Count 2: Possession of Child Pornography

[60] I, therefore, find that he had knowledge of the child pornography found on his hard drives.

[61] I am satisfied beyond a reasonable doubt that the Crown has proven the element of knowledge.

Count1: Making Available Child Pornography

[62] Mr. Natal Carlos did these searches between February 17, 18 and March 5, 2013. He knew the downloads went automatically to the shared folders. He did not delete them from the C drive until March 10, 2013.

[63] I find that Mr. Natal Carlos knew the files were child pornography, knew they were on his computer, knew they were in his shared folders, knew they would be shared, allowed them to be shared, and as such made them available.

[64] As Constable Martin was able to download the videos, I find that Mr. Natal Carlos made them available on the Ares file-sharing program.

CONCLUSION

[65] Accordingly, Mr. Natal Carlos is found guilty on count 1 and 2.

M.J. Donohue, J.

Released: October 1, 2015

CITATION: R. v. Carlos, 2015 ONSC 6070

COURT FILE NO.: CR-15-0038J

DATE: 2015-10-01

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOSUE NATAL CARLOS

REASONS FOR JUDGMENT

M.J. Donohue, J.

Released: October 1, 2015