CITATION: R. v. C.C., 2016 ONSC 4524
COURT FILE NO.: 1355/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.C.
M. Morris, for Her Majesty the Queen
D. Holmes, for the defence
HEARD: June 20 – 23, 2016
REASONS FOR JUDGMENT
BALTMAN J.
Introduction
1The accused, C.C., faces two charges related to child pornography found on his computer. Following the execution of a search warrant on his home and examination of his computer, police found numerous pornographic images and videos involving children. This led to a charge of possessing child pornography under s. 163.1(4) of the Code, to which the accused has pleaded guilty.
2Police also concluded that in April 2014 C.C. posted images of his then 9-year old niece on a publicly available Russian website, along with a request for “dirty comments” in English. While the posted images do not on their own constitute child pornography (his niece is fully clothed in the photos), it is alleged that C.C. thereafter engaged in an online discussion with other individuals regarding sexual acts to be committed against his niece. This led to a charge of making child pornography “available” under s. 163.1(3), to which the accused has pleaded not guilty.
3The trial on this latter charge was held before me, without a jury. The sole issue at trial was the identity of the person posting the images and commentary regarding C.C.’s niece. The defence conceded that whoever did so is guilty of the offence charged, but maintained it was someone other than C.C.
Evidence and Findings
4Significant portions of the evidence at trial were undisputed. Where important aspects are in issue, I shall so indicate.
5C.C. is 26 years old and lives in a 2 bedroom apartment in Mississauga, along with his parents. The apartment is on the upper floor of a two story building with mixed commercial and residential tenants. A fast food restaurant is situated on the main level directly below C.C.’s family. The restaurant offers free Wi-Fi to its customers.
6In the years leading up to these charges C.C. owned a laptop computer. Between December 2012 and January 2014 he collected a large quantity of digital images of child pornography on his computer. This included 937 images and 56 videos of children in a sexualized context, all of which C.C. has admitted meet the Criminal Code definition of child pornography.
7Detective Stuart Butler is an undercover police officer based in Brisbane, Australia. He poses online as a child sex offender in order to find real child sex offenders. On April 21, 2014, he identified someone calling himself “uncleC.129”1 on a Russian image sharing website called imgsrc.ru (“the Russian site”), using the email address uncle.C.@yahoo.ca.2 I shall refer to this user as “Uncle C.”. The associated IP provider was Bell Canada, which showed the subscriber as the restaurant located beneath C.C.’s apartment.
8In April 2014 Uncle C. posted several photo albums on the Russian site, including one entitled “my niece”. It contains 12 photos of A.P., who is the accused’s then 9-year old niece. A.P. is fully clothed in all the photos. However, in the comments section Uncle C. stipulated “Dirty Comments English only please”. Apparently this had the desired effect, as it brought in numerous sexually graphic comments about the photos from users around the world, with whom Uncle C. then conversed in the same tone.
9A few examples shall suffice. One photo of A.P. produced this exchange:
[U.S. user] Sexy I’d pump her belly full every chance I got
[Uncle C.] mmmm I bet she’d love it
[U.S. user] Do you Pump her full
[Uncle C.] No [with emoji for sad face] I want to so bad
10Another photo of A.P., wearing pajamas and lying in a hospital bed, produced this exchange:
[British user] Sponge bath…definitely needs a sponge bath…
[Uncle C.] yes she is dirty Lil thing
11From yet another photo, where A.P. is asleep on what appears to be her bedroom at home, this exchange resulted:
[British user] Have u been in her before
[Uncle C.] no [sad face emoji] not yet but she let’s me feel her up
[British user] Lucky you…I’d love to get my hand inside her pants…bet she has a cute little pu$$ie [sic]…
12Consequently, while the photos on their own are not pornographic, when combined with the highly sexualized commentary they indisputably meet the Criminal Code definition of child pornography.
13After viewing that material Officer Butler, using his undercover identity, emailed Uncle C., pretending to be interested in the images that Uncle C. had posted on the site. Uncle C. responded: “This is my niece I want start abusing her [sic]”.
14Butler was able to trace the IP address associated with the user named Uncle C. to Bell Canada, the internet provider. Concerned that the author might sexually abuse a child, Butler contacted Constable Thomas Nairn, who is a covert operator with the Child Exploitation Centre of the RCMP. Coincidentally, Nairn was already monitoring Uncle C.’s website, which he had discovered on April 2, 2014 during a routine examination.
15Nairn then referred the file to Officer Andrew Ullock, who works in the Internet Child Exploitation Unit of the Peel Police department. After confirming that the subscriber associated with the user’s IP address was the restaurant below the accused’s apartment, Ullock attended the scene and learned that C.C. and his parents lived directly above the restaurant.
16Ullock also learned from E. B., the owner of the restaurant, that he offers free Wi-Fi to his customers. At trial E.B. confirmed that he offers free Wi-Fi but stipulated that he types the password into the customer’s device, rather than saying it out loud. For friends and family he gives them the password outright.
17By tracing some of the background images in various photos of A.P., Ullock was able to determine that the girl in the photos was in fact A.P., and that her uncle – C.C. - lived directly above the restaurant to which the IP address linked. He obtained a search warrant and on April 25^th^ arrested C.C. and retrieved his computer.
18Shortly after being given his rights and speaking with duty counsel, C.C. gave a statement to Ullock, which following a voir dire I admitted as voluntary. The statement is very incriminating. Highlights include:
He stores child pornography on his computer, including sexual contact with girls under the age of 2;
He “interacts” with people on “incest chat” rooms, and through the Russian site;
On the Russian site, using the name “Uncle C.”, he shares photos of girls, including his own niece, and leaves comments about them;
As recently as a few days before his arrest he shared child pornography with others online;
He has a sexual interest in children and has fantasized about touching his niece;
He talks online regularly about his sexual fantasies concerning his niece, including a posting made on the day of his arrest;
19The hard drive that was seized from C.C.’s computer was subsequently examined by Constable Frank Romita, who the defence conceded is an expert in the forensic analysis of electronic data. He confirmed that the computer had been used to store hundreds of images of child pornography. His examination revealed search terms that the accused had typed into the computer, including: “incest chat”; “storys about uncle niece”; “i want child porn”; i want to be a pedo”; “uncle fucks niece”; and “uncle impregnates niece”.
20In his testimony at trial the accused acknowledged having conducted those searches. He also admitted to visiting websites that focus explicitly on uncles sexually abusing nieces, including “Uncle fucks his naïve Niece”, and “Uncle Cums In His Niece”, and to initiating several highly sexualized Skype “chat messages” about young girls, in which he made comments such as “this is my niece”, “mmmm u call me pedo daddy” and “mmmm mouth ready for my pedo cock”.
21The accused testified that the statement he gave to Ullock on the evening of his arrest was only partly true. The portions where he admitted to possessing child pornography were accurate; however, any apparent admissions to sharing child pornography or making it available were not voluntary, and given out of fear that Ullock would punish him in some fashion if he didn’t confess. While he stored and accessed various images and websites that feature child pornography, he never made such material available by sharing or disseminating it in any way. He used the Russian website solely to see pictures of cars and travel locations. He never posted photos of his niece and did not participate in any of the sexual conversations associated with the photos.
22For reasons similar to my findings on the voir dire, I reject the accused’s explanation for these incriminating statements. There is no reliable evidence that he was bullied or unduly pressured before or during the interview with Ullock. He appears subdued and humiliated during the interview but that is entirely predictable, given the charges he was facing and the behaviour he admitted to.
23During cross-examination the accused conceded that he was the only person with access to his computer, and that he has had – at least at some point in the past - a sexual interest in young children. Although he agreed that A.P. is his niece and the hard drive of his computer contains an album with photos of A.P., he denied posting any photos of A.P. onto the Russian site, much less participating in any of the associated commentary. He maintains he has no idea how the photos or commentary got onto his computer.
24The accused explained that in February 2014 his computer broke down. As he could not afford to repair it, he did not access the computer again before he was arrested on these charges on April 24, 2014.
25The accused’s father, R.C., also testified that in the beginning of 2014 the accused’s computer “went down”. He recalled that whereas previously the accused would Skype with his girlfriend, who lived in Quebec, after his computer ceased functioning the accused used his mother’s phone to communicate with his girlfriend. He conceded that his belief that C.C.’s computer had malfunctioned was based solely on what C.C. had told him; he never checked the computer himself.
Analysis
26In order for me to convict the accused I must be satisfied on the totality of the evidence there is no reasonable doubt as to his guilt, in accordance with the three stage approach set out in W.(D). v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).
27The sole issue here is identity, namely whether “Uncle C.” from the Russian site and the accused are the same person. The accused concedes the communications are pornographic, but denies having posted them. He postulates that someone else, using his identity, has disseminated that material on the Russian site.
28I neither believe the evidence of the accused nor find it raises a reasonable doubt. It is absurd to consider that someone else, using the identical first name as the accused and accessing the Wi-Fi directly below his apartment, would pose as “Uncle C.” in order to disseminate photos and comments about the accused’s own niece. At trial C.C. admitted that a) his user name is “Uncle C.” (with the unabbreviated “C” being identical to his first name); b) he has a sexual interest in his niece, A.P.; and c) he has conducted numerous searches and accessed several websites that feature incest between an uncle and niece. The searches that he admitted to conducting on his computer, which make specific reference to an uncle sexually abusing his niece, demonstrate he had a very real, live sexual interest in A.P. Who else BUT him, using his real first name, would be motivated to share these images of his niece?
29As for the suggestion that the accused could have not have shared these photos in April 2014, because his computer was supposedly broken at that time, any evidence to that effect is sketchy and unreliable. It’s the accused who claims that his computer was on the lam from February to April. His father echoes that but has no independent knowledge to that effect; he’s simply repeating what the accused told him. And I find the accused to be an utterly untrustworthy witness.
Conclusion
30In conclusion, the Crown’s case is overwhelmingly strong. There is not a shred of evidence from the defence that detracts from it. I find the accused guilty on both counts.
Baltman J.
DATE: July 13, 2016
CITATION: R. v. C.C., 2016 ONSC 4524
COURT FILE NO.: 1355/15
DATE: 2016 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
C.C.
REASONS FOR JUDGMENT
Baltman J.
Released: July 13, 2016