CITATION: R. v. Billings, 2015 ONSC 972

COURT FILE NO.: CR-13-7680

DATE: 2015/02/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SANDY BILLINGS

Defendant

Kerry McVey, for the Crown

Meaghan Thomas, for the Defendant

HEARD: January 12-16, 2013 (Ottawa)

REASONS FOR decision

PARFETT J.

1The accused, Sandy Billings is charged with two counts of s. 163.1(4) (possession child pornography) pursuant to the Criminal Code of Canada[1]^, one count of s. 163.1(4.1) (accessing child pornography) and one count of s. 163.1(3) (making child pornography available). He pleaded not guilty to all charges. At the conclusion of the trial, the Crown indicated that it was not seeking a conviction on the charge of accessing child pornography. Therefore, that charge will be dismissed.

Background

2Detective Jeremy Spence of the International Child Exploitation Unit (“ICE”) of the Ontario Provincial Police (“OPP”) was conducting a random computer search for potential users of child pornography in the City of Ottawa. He discovered that a computer with a certain internet protocol (“IP”) address was using a peer‑to‑peer software program called LimeWire Music (“LimeWire”) in order to access shared files of child pornography. A search warrant was obtained for the subscriber address that matched the IP address. Two men lived at that address, one of whom was Sandy Billings. Mr. Billings was arrested on charges of possession of child pornography.

Evidence for the Crown

3On June 12, 2013, Det. Spence used a computer program called E‑phex that monitors peer‑to‑peer networks for people trading in child pornography. This program has been in use for four years and can be set to monitor certain areas of the province. On this occasion, Det. Spence was targeting the City of Ottawa. The program randomly monitors the Gnutella network, which is used by people to share information such as music and movies. According to Det. Spence, in order to get onto the Gnutella network peer‑to‑peer software is required. The necessary software can be downloaded onto a computer from the Internet. Detective Spence testified that this software then permits a user to enter specific search terms in order to find other users who possess the files that match those search terms. If matching files are located, those files can be downloaded onto the user’s computer into a folder that automatically shares the files in that folder with others.

4Detective Spence advised the court that his program seeks out computers who are searching the Gnutella network using terms that are commonly used in order to find child pornography. On June 12, 2013, he found one such computer.

5Detective Spence indicated that he sought a single user connection with the suspected computer. Once done, the computer program then can focus on that computer. The program is able to access the shared folder of that computer and can assess its contents. The program can also download the files that are in the individual computer’s shared folder. Detective Spence advised the court that he received seven files from the computer he was investigating. The concept of a shared folder is such that anyone who is also searching on the Gnutella network for similar files can access the target computer’s shared folder. Of the seven files downloaded, four were provisionally classified as child pornography.

6The E‑phex computer program is also designed to access the computer itself in order to locate the IP address and search for files that might be child pornography. In addition, the computer will locate the global unique identifier (“GUID”) number that was assigned to the computer when the peer‑to‑peer software was downloaded. Detective Spence testified that as the name suggests, this number is unique to the computer. On cross‑examination, Det. Spence agreed that while the GUID number is unique to the computer, it is not unique to a user of that computer.

7On June 18, 2013 the Internet provider supplied Det. Spence with the subscriber information that matched the IP address. That information indicated that the subscriber was Steven Goodwin living at an address on Laurier Street in Ottawa. Detective Spence agreed in cross‑examination that the IP address is specific only to a residence and not to a particular computer within the residence. Detective Spence testified that he contacted Ottawa Police Service (“OPS”) and advised them of his findings. With their assistance, he also obtained a search warrant for the Laurier Street address. From the OPS, Det. Spence learned that there were two residents at that address – Sandy Billings and Steven Goodwin.

8The search warrant was executed July 4, 2013 at 9:40 a.m. The computer matching the GUID number that Det. Spence had discovered earlier was found in the living room of the apartment.[2] The computer was seized. It was running at the time of the seizure and in the shared folder of the LimeWire program, officers found child pornography.

9Detective Spence testified that he conducted an interview with Sandy Billings after his arrest. In that interview, Mr. Billings confirmed that the computer in the living room was his and that his roommate, Mr. Goodwin, never used that computer.[3]

10Detective Carle Amyotte testified that on June 24, 2013 he was assigned to the ICE unit and was asked to assist with this investigation. He went to the apartment on Laurier Street on June 25, 2013, stood outside the door and used his cellphone to scan for a Wi‑Fi signal. He located a Wi‑Fi signal in the name of “Sandy”. It was a secured network that required a password in order to access it.

11Detective Michel Villeneuve was qualified as an expert in the forensic analysis of computers. He testified that LimeWire is a software program that could be installed by a user for the purpose of searching the Internet. It does not come with the purchase of the computer. The software is an open source program and allows the user to download files that others will be able to share. LimeWire uses the Gnutella network. In turn, Gnutella is a network where people share files.

12LimeWire was installed on the target computer on March 2, 2013. At the time that the search warrant was executed, a photo was taken of the shared folder on that computer. The shared folder indicated that a wide variety of files with titles suggestive of child pornography were either in the folder or in the process of being downloaded.[4] Detective Villeneuve indicated that LimeWire requires a user to select individual files in order to start the download.

13The Crown filed Det. Villeneuve’s report as well as two addendums that outlined the details of his forensic analysis of the target computer.[5] Detective Villeneuve testified that his analysis of the target computer indicated that there were 55 movies that were classified as child pornography on the hard drive[6]. It also indicated that there were numerous files that had been deleted[7] but had been viewed as recently as July 3, 2013.[8] In total, there were 24,000 images that had been deleted. The file names of the deleted files were strongly suggestive of child pornography, although Det. Villeneuve agreed on cross‑examination that he could not be absolutely certain that these files were, in fact, child pornography. On the other hand, Det. Villeneuve also stated that it was not possible to accidentally acquire 24,000 images that required deletion. It was his opinion that the existence of such a large quantity of deleted images indicated someone had sought out those images for the purpose of viewing them.

14Detective Villeneuve told the court that part of his analysis involved looking for the identity of the user or users of the computer. In order to do that, he indicated that he looked at several areas of activity on the computer. In this case, primarily Skype and an Internet gaming site called Pogo.

15According to Det. Villeneuve, there were two Skype accounts that existed on the target computer, but only one that was ever used. One account was in the name of “sgoodwin58”. The other account was in the name of “sandy.billings4”. The only Skype account that was used on this computer was the “sandy.billings4” account. The profile for the Skype account contained information related to the accused as well as a photo of the accused. Detective Villeneuve testified that there were logs available on the computer of all the Skype calls that were made on the target computer. Most of the calls were very short and the chat messaging primarily involved discussions relating to the playing of computer card games.

16There was also a MSN Messenger program that was on the computer. Detective Villeneuve indicated that there were three accounts associated with that program, but only one was ever used and it was in the name of “romeo1959@hotmail.com”. It was conceded by defence counsel that the accused’s middle name is Romeo and he was born in 1959. In addition, the profile information related to the accused.

17Finally, Det. Villeneuve told the court that the Internet history showed there were three main types of activity that occurred: (1) searches using terms strongly suggestive of child pornography[9], (2) log‑ins to Facebook and (3) log‑ins to Pogo. He testified that the Pogo site was an Internet gaming site where users could play computer card games with other users. The Internet history revealed that the username associated with access to the Pogo site was “sandyromeo1959”.[10]

18The last analysis that Det. Villeneuve indicated he undertook was to look at the timeline of the Internet searches for what appeared to be child pornography and activity by the “sandy.billings4” Skype account. This analysis revealed that searches occurred regularly and within relatively short periods of time before, during and after Skype activity.[11]

19Detective Villeneuve testified that his analysis suggested strongly that there was only one user of this computer – Sandy Romeo Billings. He also stated that there was an absence of evidence that anyone else used the computer. However, he conceded in cross‑examination that it was possible that a second user could have accessed the computer using only the usernames and accounts associated with the accused. On the other hand, Det. Villeneuve indicated that one would still expect to see some indication of activity personal to that other user and that such evidence did not exist here.

20Detective Villeneuve agreed in cross‑examination that the evidence of the identity of the user is limited. There is no email account; there were no personal documents on this computer; and there were no personal photos other than the webcam photo of the accused. Detective Villeneuve conceded that if these things had existed, they would further support his conclusion. However, he also indicated that even though the data may be limited, there was no evidence of any other user.

21Under cross‑examination, Det. Villeneuve indicated that during the installation of LimeWire, the “save folder” screen is the first and only one that contains an indication that the folder will be shared with others. He also agreed that the person who downloaded LimeWire on the target computer used only the default settings and could have installed the program simply by clicking on “next” each time a new screen appeared. This process would have taken a very short period of time.

Evidence for Defence

22Sandy Billings testified in his own defence. He indicated that he is 56 years old, has a grade two education and has lived at the Laurier Street address for the past 10 years.

23He told the court that his roommate, Steven Goodwin, had purchased the computer that was found in the living room. He stated that his computer was in Goodwin’s bedroom. He indicated that both he and Goodwin used the computer in the living room, particularly as it had been set up for use with the flat screen TV that was his.

24He stated that Goodwin used the computer primarily to go on Facebook, play card games on Pogo and search for child pornography. He testified that it was Goodwin who had downloaded LimeWire. He also indicated that Goodwin used his username in order to play on Pogo because the account belonged to Billings. In addition, Billings stated that Goodwin used his account whenever he talked on Skype. Billings agreed in cross‑examination that Goodwin had his own Skype account and that there was no reason for Goodwin to use Billings’ account. Billings also conceded that the persons contacted via Skype were solely members of his own family. Additionally, in none of the chat messages did the person logged on with Billings’ account identify themselves. Billings denied in cross‑examination that this was because he was the only person using that Skype account.

25Billings told the court that he has a criminal record with two entries for sexual assault involving children.[12] Consequently, he was very concerned the first time he saw evidence that Goodwin was accessing child pornography. He indicated that he was playing Internet card games when a pop‑up occurred and the image was of a young child. He stated that he knew that it was pornographic. He immediately deleted the image. The image indicated that it originated through LimeWire. Billings said that he had not downloaded LimeWire and did not know what it was. He was unaware that it was a file sharing program. He believed that Goodwin used it for downloading music and movies, although he later learned that he also used it for downloading child pornography. Billings testified that after finding this first image, he confronted Goodwin and Goodwin promised him he would never access child pornography again.

26After that first occasion, Billings stated that he would check the LimeWire account periodically and on another occasion, he discovered what looked to him to be child pornography in the folder. He told the court that he opened each and every one of the files in the folder to determine whether they were, in fact, child pornography before deleting them. In cross‑examination, he indicated that Goodwin was present in the apartment during this process and he agreed that he could simply have asked Goodwin if the material was child pornography before deleting it. Billings stated that he again extracted a promise from Goodwin that he would not access child pornography.

27In all, Billings indicated that there were four confrontations with Goodwin about pornography found on the computer. On each occasion, Goodwin promised that he would never do it again.

28In cross‑examination, Billings told the court that he could not remember the time frame for any of the confrontations, other than that the first one occurred during the winter. He also indicated that he changed his password but immediately gave it to Goodwin even though he agreed that it might have prevented Goodwin from accessing further child pornography.

29He testified that he was fearful of the police finding the child pornography. He believed that the police would never believe that it was not his child pornography because of his criminal record. He advised the court that it never occurred to him that he might avoid this problem by going to the police himself. Furthermore, he stated that it never occurred to him to change computers with Goodwin and use his own, albeit slower, computer. Nor did it occur to him to move out or even start looking to move out. He stated that he did not like living alone. Additionally, he conceded that he never asked Goodwin to delete the LimeWire program from this computer.

30Finally, Billings testified that he told the police that Goodwin never used the computer in the living room and had no interest in child pornography. However, he stated those statements were lies. He said that Goodwin was his best friend and he did not want him to go to jail as he would not do well there. He indicated that he was now prepared to admit that the child pornography belonged to Goodwin, as he did not want to go to jail himself. In cross‑examination, Billings agreed that he decided to protect Goodwin even though he was furious with him over the fact that he had accessed child pornography and that Goodwin’s behaviour had resulted in him being arrested.

Issues

31The only issue in this trial is whether the Crown has proven its case beyond a reasonable doubt. Central to this determination is credibility. The credibility of the Crown witnesses is not an issue; it is the credibility of the accused that is the focus of the debate.

32In assessing the evidence, there are two key questions that must be answered:

1. Was the accused the sole user of the computer; and

2. If he was, has the Crown proven all the elements of the offences beyond a reasonable doubt?

Positions of the Parties

33Defence argues firstly that Mr. Billings’ evidence was credible and if accepted, in part or in whole, it raises a reasonable doubt concerning whether Mr. Billings was the sole user of the computer and/or whether he knew that he was making child pornography available to others. In support of Mr. Billings’ credibility, Defence points to the following factors:

• Detective Villeneuve concluded that Mr. Billings was the primary user of the computer, but could not say that he was the sole user;

• The living room area where the computer was located was obviously a common area;

• Mr. Billings’ statement that Mr. Goodwin’s computer was slow to boot up, which was why he did not use it, was corroborated by Det. Amyotte’s evidence;

• Mr. Billings is a poor reader and therefore had to open files to determine if they were child pornography;

• Mr. Billings has only a grade two education and is very unsophisticated. This lack of sophistication explains why he did not go to the police or do more to protect himself when he discovered child pornography on the computer;

• Mr. Goodwin is Mr. Billings’ best friend. This fact explains why Mr. Billings protected Mr. Goodwin initially, why he did not move out of the apartment and why he gave him the password to the computer; and

• Detective Villeneuve testified that the LimeWire program could be installed within a minute without ever reading the various screens. Billings’ lack of sophistication makes it believable that he did not know that the files that were downloaded could be shared by others.

34Defence also contends that even if the court rejects Mr. Billings’ evidence, that it ought to be left with a reasonable doubt on the basis of the Crown’s evidence alone. Defence outlined the following deficits in the Crown’s evidence:

• Two people lived in the apartment and both men had access to the computer;

• Although the Internet network was named “Sandy”, the IP address was registered in Goodwin’s name;

• The vast majority of the child pornography was in inaccessible space;

• Detective Villeneuve conceded that Goodwin could have used the computer without any trace of his use existing;

• The fact that the LimeWire program does not make it particularly clear that the default settings are such that files will be automatically shared.

35Crown counsel argues that Mr. Billings’ evidence should be rejected in its entirety. Despite his testimony to the contrary, the Crown points to the following evidence that Mr. Billings was the sole user of the computer:

• The only reason Det. Villeneuve did not find Billings was the sole user was because there were two failed attempts by someone else to log onto Skype and MSN messenger;

• The identity information was substantial. Apart from the two failed log‑in attempts, only Billings’ usernames and passwords were used, only his accounts were accessed and only his family members were contacted;

• The computer was in the area that Billings used. Despite the fact that his bed was concealed behind some furniture, the main part of the living room was more consistent with Billings’ part of the apartment. There were items belonging to Billings, including his clothes storage, present in the living room. The photos of Goodwin’s room indicate clearly that he keeps many of his possessions in that room, including a computer, TV, and PVR. Both the computer and the TV were functioning. The Crown contends that, in essence, the apartment is divided into two distinct areas: Goodwin’s bedroom and the living room, which is Billings’ area. Only the kitchen and bathroom were shared;

• Billings said that Goodwin used the computer in the living room for upwards of six hours a day; therefore, one would expect to find evidence of his presence. However, there was no evidence of Goodwin accessing either his own Facebook account or Skype account despite the fact that he possessed both. In addition, there was no evidence of Goodwin conducting online activity such as banking nor was there evidence that his friends or family were ever contacted; and

• Billings advised Det. Spence in his interview that Goodwin never used his computer and did not have anything to do with the child pornography.

36The Crown also notes that while Mr. Billings was somewhat unsophisticated, he nonetheless was able to bank and shop online. He was able to create accounts for and use Skype, Pogo and Facebook. Moreover, he was a regular user of the Internet for the purpose of searches in areas of interest to him, such as fishing. In addition, Mr. Billings conceded that despite his limited reading skills, he was aware from the file names alone that the files in the shared folder almost certainly contained child pornography and yet he still opened them prior to deleting them.

37Finally, the Crown contends that Mr. Billings’ explanations for doing nothing to deal with finding child pornography on the computer are not believable. She states that Mr. Billings knew he was at serious risk because of his criminal record, had other options for a place to live, could have changed the password to his computer to prevent access, and could have provided the explanation that Mr. Goodwin was the culprit from the outset and yet chose to do nothing to protect himself.

Legal Principles

38Defence conceded that the images found on the computer in the living room constituted child pornography.

39The starting point for any credibility analysis where an accused testifies is the analysis in R. v. W. (D)[13]. If I accept Billings’ evidence, then I must acquit. If I do not accept Billings’ evidence, but if it leaves me with a reasonable doubt about his guilt, then again I must acquit. Finally, even if Billings’ evidence does not leave me with a reasonable doubt concerning his guilt, I can convict only if the rest of the evidence that I accept proves his guilt beyond a reasonable doubt.

40The next issue in the case is that of possession. To establish possession, the Crown must prove both knowledge and control, and that the two have co‑existed at some point in time. Possession may be personal or actual, constructive possession or joint possession.[14]

41Possession has been defined in the Criminal Code of Canada as follows:

Section 4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

42In this case, the Crown is relying on constructive possession of the child pornography. In order to constitute constructive possession, the Crown must prove knowledge that extends beyond mere quiescence, and discloses some measure of control over the item to be possessed.[15] Knowledge need not be proven by direct evidence; it can be inferred from surrounding circumstances.[16] Control is established if the accused has the right to grant or withhold consent over the movement of the child pornography.[17]

43In the specific circumstances of child pornography, constructive possession is established when it is shown that the accused had knowledge of the character of the underlying data file, knowingly puts or keeps the data file in a particular place and intends to have the data file for his use or benefit or that of another person.[18]

44Possession can be proven by circumstantial evidence. As noted in R. v. Pham:

The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence.[19]

45When using circumstantial evidence, the court must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.[20] On the other hand, in assessing the inferences to be drawn from each piece of evidence, the reasonable doubt standard is not used each time. Instead, competing inferences are considered, weighed and findings made; the resulting findings are then assessed on the reasonable doubt standard.[21] Finally, the Crown is not obliged to negative “every conjecture to which the circumstantial evidence might give rise and which might be consistent with the innocence of the accused”.[22]

46The offence of making child pornography available requires proof that the accused has knowledge of the fact that the pornographic material was being made available, but does not require that the accused do some act to facilitate the availability of the material.[23] In essence, the Crown must show that the accused knew that he was working with a file‑sharing program and that others could access the material in his shared folder.

47The Crown relies on actual knowledge or alternatively wilful blindness to establish the mens rea of the offence of making child pornography available. In R. v. Briscoe, the court described wilful blindness as follows: “wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquires”.[24] In the context of child pornography, the concept of wilful blindness can be established on the basis of evidence that the accused knew child pornography could be accessed through LimeWire or had a very strong suspicion that it could be and knew that he ought to investigate further, but chose not to.[25] In short, the accused must be found to have chosen to be left in ignorance.[26]

Analysis

48The first issue to determine is whether I believe Mr. Billings that he was not the sole user of the computer or whether his evidence leaves me with a reasonable doubt on that issue. I do not believe him and his evidence does not leave me with a reasonable doubt.

49Mr. Billings’ suggestion that Mr. Goodwin was the guilty party is not credible. I adopt the analysis of this issue made by the Crown. In addition, I find the following evidence to be particularly compelling: (1) Mr. Billings testified that Mr. Goodwin used his computer for upwards of six hours a day. To suggest that Mr. Goodwin not only did so, but did so without ever leaving a trace of himself on the computer defies credulity. (2) Mr. Goodwin had his own accounts for Skype and Facebook and there was no reason for him not to use them. (3) In addition, even if he was using Mr. Billings’ accounts, it would be expected that he would contact his own friends and family. There is no evidence that he ever did so. (4) The Crown demonstrated that Mr. Billings was Skyping with his sister and either simultaneously or in close proximity in time searching for child pornography. Consequently, I find that Mr. Billings was the sole user of the computer in the living room.

50Given that Mr. Billings was the sole user of the computer I also find that he had constructive possession of the child pornography. He was the person downloading the images, viewing them and then deleting them. In addition, he kept 55 child pornographic movies on his computer.

51The only remaining issue is whether Mr. Billings knew or was wilfully blind to the fact that LimeWire was a file sharing program. I find the Crown has not proven Mr. Billings’ knowledge beyond a reasonable doubt. Unlike the accused in R. v. Johannson[27], Mr. Billings was not a sophisticated person. He was certainly able to use a computer, but none of the programs he used required any particular sophistication.

52The LimeWire program requires that a user make alterations to the default settings of the program in order to disable the file‑sharing aspect. Mr. Billings did not alter any aspect of the program. He only used the default settings. The program does not try to make it clear that it is a file‑sharing program. There is only one screen during the download process that mentions the fact that it is a file‑sharing program. Once installed, the program does create a file labelled “Shared Folder”, but I find that it would be easy for an unsophisticated person such as Mr. Billings to miss the fact that this name meant that other people he did not know could access his files.

53Mr. Billings regularly searched on the Internet for child pornography. He used search engines other than LimeWire. From those other search engines such as Google and Bing, he downloaded images onto his computer, but those images would not have been accessible to be shared by others. It would take a person with a reasonable sophistication with computers to understand the fundamental difference between Google and LimeWire. Mr. Billings was not such a person.

Conclusion

54I find that the Crown has proven beyond a reasonable doubt that Mr. Billings possessed child pornography and he will be convicted of those two offences. On the other hand, I do not find that Mr. Billings had the requisite mens rea for the offence of making child pornography available and he will therefore be acquitted of that offence.

Madam Justice Julianne A. Parfett

Released: February 12, 2015

CITATION: R. v. Billings, 2015 ONSC 972

COURT FILE NO.: CR-13-7680

Footnotes

1. 1R.S.C. 1985, c. C-46.
2. 2Photo #9, Exhibit #3.
3. 3Exhibit #5.
4. 4Exhibit #11.
5. 5Exhibit #9.
6. 6Exhibit #7.
7. 7Exhibits #6 & #7.
8. 8Addendum to Exhibit #9.
9. 9See p. 15 of Exhibit #9.
10. 10On July 4, 2013, when the search warrant was executed, the accused was seated at the computer and Pogo was actively running on the computer. See photos 24-26 of Exhibit #3.
11. 11See p. 20-21 of Exhibit #9.
12. 12Exhibit #14.
13. 131991 93 (SCC), [1991] 1 S.C.R. 742.
14. 14R. v. Anderson, 1995 1338 (BC CA) at paras. 13‑14.
15. 15R. v. Grey, 28 O.R. (3d) 417, 1996 35 (ON CA).
16. 16Anderson at para. 15.
17. 17R. v. Savory, 1996 2001 (ON CA), [1996] O.J. No. 3811 (C.A.) at para. 7.
18. 18R. v. Morelli, 2010 SCC 8.
19. 19R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127 (C.A.) at para. 18.
20. 20R. v. Cooper, 1977 11 (SCC), [1977] S.C.J. No. 81 at p. 14.
21. 21Pham, at para. 30.
22. 22R. v. Paul, 1975 185 (SCC), [1977] 1 S.C.R. 181 at 191. See also R. v. Ruiz, [2000] O.J. No. 2713(O.C.J.) at para. 3.
23. 23R. v. Spencer, 2014 SCC 43, [2014] S.C.J. No. 43 at para. 83.
24. 242010 SCC 13 at para. 21. [Emphasis in the original].
25. 25See R.v. Duncan, 2013 ONCA 774 where broader language was found to be inadequate.
26. 26R. v. Farmer, 2014 ONCA 823 at para. 24.
27. 27[2008] S.J. No. 827 (Q.B.).