R. v. Capancioni, 2016 ONSC 4615

R. v. Capancioni, 2016 ONSC 4615

COURT FILE NO.: 7507/14

DATE: 2016-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David G. Kirk, Counsel for the Crown

• and -

ROBERT CAPANCIONI

Defendant

C. Bruce Willson, for the Defendant

HEARD: January 18, 19, 20, 21, 22, July 12 and 13, 2016

JUSTICE E. GAREAU

reasons for judgment

1The accused is charged under an indictment dated October 28, 2014 that between September 23, 2012 and January 15, 2013 he did have in his possession child pornography, contrary to section 163.1(4) of the Criminal Code of Canada, and that between the same dates, did make available child pornography, contrary to section 163.1(3) of the Criminal Code of Canada.

2The accused has entered pleas of not guilty to the aforementioned charges. This matter proceeded to trial on January 18, 19, 20, 21 and 22, 2016. Submissions were received from counsel on July 12 and 13, 2016 and the matter was put over to July 27, 2016 for decision.

Background

3This case arises from an investigation by the Sault Ste. Marie Police Services and its monitoring Internet Protocol addresses that were identified as potential download candidates sharing child pornography through the Internet Crimes Again Children Task Force Program. The lead investigator was Detective Constable Douglas Erkkila of the Sault Ste. Marie Police Services. Detective Constable Erkkila has been a member of the Technological Crimes Unit of the Sault Ste. Marie Police Services for the past 11 years. That unit deals with investigations of child pornography. Detective Constable Erkkila testified at the trial of this matter as the primary witness for the Crown.

4In November 2012, Detective Constable Erkkila began monitoring a particular Internet Protocol Address (IPA), namely, address 24.109.39.74, using undercover investigative software available to the Sault Ste. Marie Police Services. This was a result of the Sault Police Services receiving information that there was a computer system that was making child pornography available on the internet.

5In the month of December 2012, the undercover investigative software operated by Detective Constable Erkkila downloaded images, some of which were identified as child pornography, from the computer having the Internet Protocol Address of 24.109.39.74. In particular, on December 31, 2012, the police undercover software made direct connection to the computer system at the aforementioned IP Address and successfully downloaded a quantity of images of child pornography.

6A law enforcement request was made by the Sault Ste. Marie Police Services to the internet service providing for what is commonly referred to as “tombstone information”. This request is used to determine where the physical address of the computer is. The request essentially matches a virtual address with a physical location.

7The response from the internet service provider to the law enforcement request identified the account holder as Monica Valladares, with an address of 637 Northern Avenue East, Sault Ste. Marie, Ontario P6B 6G3.

8On the basis of the investigation by the Sault Ste. Marie Police Services an information to obtain search warrant was prepared by Detective Constable Douglas Erkkila and a search warrant was granted on January 10, 2013 authorizing the Sault Ste. Marie Police Services to search the dwelling house of Monica Valladares, 637 Northern Avenue East, Sault Ste. Marie, Ontario, and to search for and seize computer systems and all of its related devices and data.

9The search warrant was executed by the Sault Ste. Marie Police Services on January 15, 2013. The officer located and seized a MacBook Pro laptop computer and a MacIntosh Time Capsule wireless hard drive.

10At the relevant time the residence where the computer was located at 637 Northern Avenue East, Sault Ste. Marie, Ontario was occupied by Monica Valladares, her spouse, Robert Capancioni and their daughter, Luciana Isabella Capancioni Herrera.

11As a result of the police investigation and the seizure of the aforementioned items, Robert Capancioni was arrested on April 2, 2013 and charged with the offences of possession of child pornography and making child pornography available.

Count 1: Possession of Child Pornography

12A very useful summary of the law with respect to possession of child pornography is set out in paragraphs 92 to 93, inclusive, of the case of R. v. Bools, [2015] O.J. No. 4695. Those paragraphs read as follows:

POSSESSION

92Both 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

93To 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 of wilfully blind to these qualifies: R. v. Chalk, 2007 ONCA 815, [2007] O.N. No. 4627 (C.A.) [Chalk] at para. 18.

94The Crown need not prove that the accused knew the files met the legal definition of child pornography: Chalk at para. 18.

95The defence here concedes that the 58 images found on the hard drives of Mr. Bools meet the legal definition of child pornography.

96Knowledge 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 description, 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 [Benson] 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.

97Where the file names of the objectionable images strongly suggest child pornography content, an inference of knowledge will be strong: Douglas at para 94.

CONTROL

98The 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.

13These principles are reiterated by the Ontario Court of Appeal in a 2007 case, R. v. Chalk, Court File C42872. Mr. Justice Doherty, speaking for the majority of the court, stated at paragraph 17, 18 and 19 of that decision:

17Section 4(3) of the Criminal Code contains a definition of possession. Section 493)(a)(ii) contains the relevant part of that definition for present purposes:

(a) A person has anything in possession when he ... knowingly

(ii) Has it in any place ... for the use or benefit of himself or another person;

18Possession requires knowledge of the criminal character of the item in issue. In this case, the Crown had to prove that the appellant had knowledge of the contents of the videos in issue. It was, of course, irrelevant whether the appellant knew the contents constituted child pornography: see Beaver v. The Queen (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (S.C.C.) at 140; Rex v. Hess (No. 1) (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.) at 51-52. The appellant’s knowledge of the nature of the videos was established by his statements to the police.

19Knowledge alone will not establish possession. The Crown must also prove that an accused with the requisite knowledge had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.), at paras. 60-61.

14The position of the Crown is that the computer seized is in fact the computer of Robert Capancioni and the archival history of the computer use indicates that he is a sophisticated computer user. The Crown also suggests that the websites visited by the accused in his use of the computer implies knowledge of the accused that he knew that he had in his possession child pornography. The Crown concedes that the case against the accused is built on circumstantial evidence but argues when the evidence is examined in its totality, it overwhelmingly establishes the elements of knowledge and control.

15The position of the defence is that the circumstantial evidence in this case does not meet the threshold to establish the essential element of knowledge and control beyond a reasonable doubt and that therefore the charge of possession should be dismissed.

16The element of knowledge can be inferred from the ownership of the computer and evidence as to its use. The Internet Protocol Address for the computer identified the account holder as Monica Valladares, with an address of 637 Northern Avenue East, Sault Ste. Marie, Ontario. The accused, Robert Capancioni, also resided at that address with Ms. Valladares. The photo book entered as Exhibit 4 contains photographs of the computer items seized from the 637 Northern Avenue East address pursuant to the search warrant obtained. As appears from the fifth photograph in that book, when the Mac laptop computer is opened, the name “Robert Capancioni” appears with a password to be entered.

17The hard drive within the Mac laptop seized by police was divided or partitioned into two separate parts. The first part called “untitled” and the second part was an encrypted partition titled “Moni’s disc” which, according to the evidence of Detective Constable Erkkila, is where the child pornography was lodged. The police could not break the encryption code to locate images of child pornography on the Mac laptop seized. The “untitled” portion had two user accounts set up, namely, “Moni” and “Robbie Capper”.

18With respect to the use of the “Robbie Capper” account, it identifies a distinctly different use than the “Moni” account and the archival history of the use of the Robbie Capper account clearly indicates items stored that are of particular interest to the accused Robert Capancioni and not to Monica Valladares. Entered as Exhibit 8 are a selective group of documents stored in the “Robbie Capper” account. These documents include the following:

(a) A draft residential tenancy agreement identifying Robert Capancioni as the tenant;

(b) A balance sheet as of November 14, 2012 for Robert Capancioni rental units;

(c) A residential tenancy agreement dated December 4, 2012 between Robert Capancioni as the landlord relating to an apartment in a building located at 537 Douglas Street, Sault Ste. Marie, Ontario;

(d) A document signed by Robert Peter Capancioni related to travel of his daughter with his wife to Mexico;

(e) Ambulance call evaluations relating to Robert Capancioni’s employment as an ambulance attendance;

(f) An employment list related to the employment of Robert Capancioni;

(g) An employment schedule for the period from October 18, 2012 to January 6, 2013 with the name Capancioni highlighted;

(h) A report related to a 2012 Toyota Tundra 4 WD double cab vehicle on the website CarCostCanada.com. The report indicates that it was created on August 5, 2012 and “created exclusively for Robert Capancioni”.

(i) A PUC Service Inc. billing history from November 30, 2011 to October 30, 2012 under the account name of Robert Capancioni.

19The aforementioned items located in the Robbie Capper account would have an interest exclusively to Robert Capancioni and be of no interest to Monica Valladares. As indicated in the evidence of Detective Constable Douglas Erkkila with respect to the use of the Moni account;

Within the Moni account, primarily everything was in Spanish language. The webpages included an Air Canada webpage with a trip plan from Toronto, here in Canada to Mexico City; the majority of her webpages were in Spanish, looking at Spanish language items. There was job searches here in Canada looking for different front-desk staff.

Detective Constable Erkkila identified these items, including a resume for Monica Valladares, as being found in the Moni account.

20It was the evidence of Detective Constable Erkkila that his examination of the computer seized and his investigation led him to conclude that there was no cross-contamination between the Robbie Capper account and the Moni account, as far as users go. In other words, the person who used the Robbie Capper account used it exclusively and the person who used the Moni account used it exclusively. Additionally, the Robbie Capper account and the Moni account had individually different passwords.

21The conclusion is clear and inescapable that in the partitioned untitled portion of the computer, Monica Valladares was using the Moni user account and that Robert Capancioni was using the Robbie Capper user account. On the evidence, I find that Robbie Capper is equivalent to Robert Capancioni as it relates to the use of the computer seized.

22The evidence indicates a distinctly different use and different inquiries made by the individual using the “Moni” account and the individual using the “Robbie Capper” account. The laptop computer was activated on July 13, 2012 using the Robbie Capper account. Both these accounts are from the untitled portion of the computer. The partitions on the computer, namely the untitled and Moni’s disc were created on July 31, 2012 from the “Robbie Capper” user account. On July 31, 2012 at 3:06 p.m. the Robbie Capper account searched the term “encrypting on Mac” and there were several other websites searched on how to use the MacIntosh file vault encryption. The Moni’s disc was an encrypted container that had been locked and encrypted using the MacIntosh software File Vault 2. It is the view of Detective Constable Erkkila that the encrypted Moni’s disc is where the child pornography is being stored. It could not be located on either the Robbie Capper account or the Moni account.

23The archival history of the Robbie Capper account indicates a history of searches for various teen internet websites which Detective Constable Erkkila testified were known sites for hosting images of child pornography. On August 1, 2012, at 10:46 a.m. the search word “teen” is entered. On August 2, 2012 at 9:28 a.m. the word “teen” is entered into the Google image search. Images of young women performing various sex acts are retrieved as a result of this search; however, none of the images meet the definition of child pornography set out in the Criminal Code of Canada. On August 15, 2012 at 8:53 a.m. the search term “teen nudist” is entered which results in various images of nude females. At 8:57 a.m. on the same day a search for “teen non-nude” is conducted. On August 20, 2012 between 4:02 and 4:05 the search term “teen bikini” is entered into the Google image search engine. At 4:11 p.m. on the same day the word “motherless” was entered into the Google search engine. It was the evidence of Detective Constable Erkkila that “motherless.com” is a pornographic website where numerous pictures and videos can be uploaded and stored and that this website has been the focus of numerous online undercover investigators into the sharing and distribution of child pornography.

24It was the evidence of Detective Constable Erkkila that the “motherless.com” website allows for users to enter a keyword to conduct more specific searches. Between the hours of 4:14 p.m. and 4:15 p.m. on August 20, 2012, three separate inquiries were made on the “motherless.com” website using the keywords “14 yr”, “12 yr” and “15 yr”. On August 24, 2012 at 9:23 a.m. numerous websites are accessed containing both teen and pre-teen content. Examples of these websites are as follows:

(a) Top Dolls – with a subtitle “little cuties”

(b) Non-nude votes – the following ranking from 1 to 10 for the top voted sites:

1. Cum see little 13 yo

2. Finger in the hole

3. Pre lolly love toys

4. Nonudes.info

5. Sleeping child fck

6. Under 13 youth

7. WeeWee puss 13

8. Little Girlfriend Pictures

9. Yia Girls

10. Fine Images in 3D

25The search of Realtiny Pics ranked the following as the “best voted free sites”:

01 – 9 to 12 yo lollys

02 – XXS Model BBS

03 – little butts

04 – Yng Fuck Suck

05 – 8 yo, 9 yo, 10 yo X

06 - Tiny hard 10, 11, 12

07 – Free School girls

08 – My PT Fruits

26A search of the site “Lucky Little 13 – Little Lolly Videos and Pics” ranked the following as the “best voted sites”:

01 – Dark unsensored virgins

02 – Banned Pre Teen videos

03 – XXS – Model: BBS

04 – 6-15 Yo Lollita HQ.vids

05 – Preteen Baby Dolls

06 – 9 yo – 10 yo – 11 yo – 12 yo

07 – Daddy Daugher Day

08 – Under 13 yo Taboo

09 – Tiny Pre Hard 10, 11, 12

27A search of the site “Under 13 Taboo – Non-nude Preteen Model Pics” ranked the following as the “best voted sites”:

01 – Preteen HD videos

02 – Cum See Little 13 yo

03 – Young 13 yo kids

04 – Sucky Lolly Pops

05 – Tiny Pre Hard 10, 11, 12

06 – Pre 13 N under

07 – Dumb Little Girls 13 yo

08 – Pussy 101 Dark Portal

09 – Lolly Suck Brother 15

28The aforementioned are all searches in the Robbie Capper user account.

29The timeline presented by the Crown for various dates from September 23, 2012 to December 31, 2012 set out various dates when the undercover investigative software of the Sault Ste. Marie Police Services indicated child pornography was available for downloading at the Internet Protocol Address where the Capancioni computer was eventually seized. For example, on September 23, 2012 from 8:55 a.m. to 10:09 a.m. the investigative software logs the commuter as a candidate for download of child pornography ten times. Both Robert Capancioni and Monica Valladares were off duty from work that day, making them both available to do this downloading of child pornography. There are similar dates such as September 27, 2012 and November 23, 2012 where both Robert Capancioni and Monica Valladares are both off duty and the police investigative software identifies that child pornography is available for downloading on these dates. Robert Capancioni uses the computer shortly after the downloading takes place raising the suggestion that Robert Capancioni is the person in possession of the pornography and making it available for downloading. Such a suggestion, in my view, is too speculative in nature to be relied upon. Having said that, it is interesting to note that on December 7, 2012, the police investigative software indicated that between the hours of 5:00 p.m. to 5:18 p.m. the computer at the IP address located at 637 Northern Avenue East, Sault Ste. Marie, Ontario was identified as a candidate for download of child pornography five times. The work schedule for Monica Valladares entered as Exhibit 7 reveals that she started work that day at 3:29 p.m. The work schedule for Robert Capancioni entered as Exhibit 15 reveals that he did not report to work until 6:00 p.m. on December 7, 2012. This is evidence that the accused was available to possess the child pornography that was available for download on December 7, 2012, whereas Monica Valladares was unavailable to possess or download child pornography between the hours of 5:00 p.m. to 5:18 p.m. on December 7, 2012.

30The evidence also indicates that on December 2, 2012 the undercover investigative software operated by Detective Constable Erkkila made a direct connection with the Capancioni computer and that at 10:25 p.m. on that day the police computer actually downloaded 13 images. As is indicated at paragraph eight of my decision released on December 11, 2015 with respect to the Section 8 Charter application brought by the accused:

One of those images downloaded to the investigative computer was a digital image of a young prepubescent female who appears to be approximately 10 years of age. The female is naked lying on her back on a red shag carpet. The female’s body is oriented away from the camera. The female has no breast development or public hair. This image and other images downloaded on December 2, 2012 would be considered child nudity. None of the images downloaded as of December 2, 2012 met the definition of child pornography under the Criminal Code of Canada.

31It is interesting to note that at 10:23 p.m. the accused, Robert Capancioni, was on YouTube websites, meaning that Robert Capancioni was using the computer exactly at the time these images of young girls, albeit not images of child pornography, were downloaded from his computer to the police investigative computer.

32The images of child pornography that were actually downloaded from the Capancioni computer to the police investigative software were downloaded on December 31, 2012 between the hours of 10:58 a.m. to 11:13 a.m. It is a fact conceded by the Crown that there is no direct evidence that the accused Robert Capancioni was looking at the child pornography sites on December 31, 2012 that generated the images obtained by the police that day. Entered as Exhibit 10 is a CD disc containing those images from two separate hash values, “Sweet Janna” and “LS Stunning Dolls”. Images from the “Sweet Janna” site downloaded on December 31, 2012 were entered as Exhibit 3. These images portray a young female who is initially clothed with the pictures progressing to where the subject is disrobed and in sexualized poses which expose her buttocks and genitalia. These images are clearly images of child pornography as defined by the Criminal Code of Canada.

33Images from the “LS Stunning Dolls” downloaded on December 31, 2012 are contained in the police investigative document entered as Exhibit 1. The images from the “LS Stunning Dolls” series show a young female with her genitalia exposed and are clearly images of child pornography as defined by the Criminal Code of Canada.

34As to the computer usage on December 31, 2012, both Monica Valladares and Robert Capancioni were off from work that day. Monica Valladares used the computer at 10:47 a.m. to create and save two Microsoft word documents in her documents folder. At 11:51 a.m., there is life management activity on the account of Robert Capancioni and from 1:18 p.m. to 1:26 p.m. Robert Capancioni is on the internet watching a Sara Evans video titled “Suds in the Bucket”. On page 62 of the police investigative report entered as Exhibit 1, it is noted that Robert Capancioni’s vehicle is observed in front of his residence at 11:48 a.m. on December 31, 2012.

35There is no direct evidence that establishes that the accused Robert Capancioni was in possession of child pornography, in that, no one observed Robert Capancioni on child pornography sites or observed him viewing child pornography. The Crown’s case against Robert Capancioni is based on circumstantial evidence. In examining circumstantial evidence the court is directed by appellate courts to look at the totality of the evidence and the complete picture. This is set out by the Ontario Court of Appeal in R. v. Uhrig 2012 ONCA 470, [2012] O.J. No. 3011 where the court stated in paragraph 11:

In this case, the final instructions of the trial judge made it absolutely clear that the Crown’s case consisted of entirely circumstantial evidence. The jurors were told twice that in order to find the appellant guilty as charged, they had to be satisfied that his guilt was the only reasonable inference from the evidence considered as a whole.

36It is clearly established on the facts of this case that the primary user of the computer with the IP address from which child pornography was downloaded on December 31, 2012 was the accused, Robert Capancioni. It is Robert Capancioni’s name that appears on the screen of the laptop seized. The documents stored on the “Robbie Capper” user defined partition on the computer are documents that would have been created by Robert Capancioni and documents that only would have interest to Robert Capancioni, such as his personal work schedule, the list of people he works with and tenancy agreements for rental property owned by him. Clearly the “Moni” account was use used by Monica Valladares as most of the entries on that account are in the Spanish language and involve subject matter that would only be of interest to Monica Valladares. It was the Robbie Capper account which searched the computer on how to set up encryption before Moni’s disc was encrypted. The inescapable conclusion on the evidence is that Robert Capancioni created the “Moni” account, encrypted it and that it was in his account that the images of child pornography was stored. This speaks to the essential element of control. It was the Robbie Capper account which searched various websites pertaining to young females. The nature of these websites and the key entry words that have to be used to activate these websites indicate that these websites have to be actively sought out; they are not stumbled upon by accident. The very nature of these websites indicate that the user of the Robbie Capper account, who is clearly Robert Capancioni, had an interest in young females and visited websites involving young girls. This speaks to the essential element of knowledge. When child pornography was available for downloading to the police investigative computer between the hours of 5:00 p.m. to 5:18 p.m. on December 7, 2012, Robert Capancioni was off work whereas Monica Valladares was at work giving Robert Capancioni the exclusive opportunity to possess and make available for downloading pornographic images to the police investigative computer.

37As set out in R. v. Bools, [2015] O.J. No. 4695 and R. v. Morelli, [2013] 1 S.C.R. 253, both knowledge and control are essential elements to a finding of possession of child pornography. In my view, the constellation of all these facts and the evidence viewed in totality indicate that the only reasonable inference that can be drawn is that Robert Capancioni was the person that had control or authority over the images and had knowledge that the images were images of child pornography. On the totality of the evidence, I am satisfied beyond a reasonable doubt that the accused knew what he had was child pornography and that he did not stumble on these files inadvertently. At the very least the accused was reckless or wilfully blind as to the qualities of the files given the archival history of the use of the computer including the websites of young females accessed.

38I am satisfied that the Crown has met its burden and established the requisite elements required under section 163.1(4) of the Criminal Code of Canada beyond a reasonable doubt.

39Accordingly, having found that I am satisfied beyond a reasonable doubt that the material downloaded to the police investigative computer from the Capancioni computer is child pornography within the meaning of the Criminal Code of Canada and that Robert Capancioni was in possession and control of this material, I find that Robert Capancioni is guilty of Count 1 in the indictment.

Count 2 – Making Available Child Pornography

40As to the charge of making child pornography available, contrary to section 153.1(3) of the Criminal Code of Canada, which is Count 2 in the indictment, the case of R. v. Bools, cited above, provides a useful summary of the law in paragraph 102 and 103 as follows:

102The 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).

103The 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).

41As set out in paragraph 83 of R. v. Spencer, [2014] 2 S.C.R., “the accused in a prosecution under 163.1(3) must be proved to have had knowledge that the pornographic material was being made available.” Cromwell J., speaking for the majority of the court goes on to say at paragraph 83 of R. v. Spencer:

I accept Coldwell J.A.’s conclusion that the offence is complete once the accused knowingly makes pornography available to others. As he put it, “In the context of a file sharing program, the mens rea element of making available child pornography under s. 163.1(3) requires proof of the intent to make computer files containing child pornography available to others using that program or actual knowledge that the file share program makes files available to others.

42In addition to having actual knowledge that the computer is downloading pornographic material thereby making it available, a person can be wilfully blind to the fact that this program is sharing data with other computers. Evidence can support an inference of wilful blindness. As to what is meant by wilful blindness and the use to be made of it at paragraph 84 in R. v. Spencer, the court offers the explanation of Charron J. in R. v. Briscol, 2010 SCC 13, 2010 S.C.C. 13 as follows:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of 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 inquiries. [Emphasis added]

43A useful case setting out the essential elements to be proven by the Crown in the offence of making child pornography available, contrary to section 163.1(3) of the Criminal Code of Canada is r. v. Beason 2010 SKQB 459, [2010] S.J. No. 758. At paragraph 18 of that decision, the court states as follows:

The elements of the offence of making child pornography available contrary to section 163.1(3) are set out in R. v. Johannson (S.B.) 2008 SKQB 451 at para 34:

34. In my opinion, the elements of the make available child pornography charges under s. 163.1(3) are as follows:

(a) The identity of the accused as the offender;

(b) The time and place of the offence;

(c) That the material in question constituted child pornography;

(d) That the child pornography was actually made available by the accused; and

(e) That the accused had the intent to make child pornography available to others.

44There is ample evidence that the computer from which the child pornography was downloaded had file sharing capability and that in fact there was an actual download from that computer to the police investigative computer on December 31, 2012.

45Installed on the Capancioni computer was a file sharing program called Azureus. Entered as Exhibit 12 was a report of the analysis of Azureus program prepared by Detective Constable Erkkila. It was the evidence of Detective Constable Erkkila that Azureus was a software program that is compatible with the BitTorrent network and file sharing through the bitTorrent network. Detective Constable Erkkila, in his report entered as Exhibit 1 and in his viva voce evidence, testified that the bitTorrent network is a very popular and publically available peer-to-peer sharing network. Computers that are part of this network are referred to as “peers”. A peer can simultaneously provide files to some peers while downloading files from other peers. The Azureus program was not on the untitled portion of the computer leading Erkkila to conclude that it is on the encrypted volume, titled Moni’s disc, where the child pornography is lodged. Detective Constable Erkkila described the Azureus program as follows in his evidence to the court:

First part of my report, the reason – the reason for this report is because the – as I did my on-line investigation, it was determined, as previously stated, is that the software that was making the child pornography available was the Azureus BitTorrent file-sharing program. To understand, again, what file sharing is, is the connection or the availability for two or more computers to connect together to make files or to share files between them based on requests of the computer user. So, once this type of program is installed on a computer, it allows the computer user to connect through a network that is part of the internet in order to communicate with other computers in order to share or receive files, which may be – which are digital in nature – they may be pictures, they may be movies, in many instances they’re music. There is an installation process, which I have a number of screenshots for, as well as in this report, I also show the screens that are available to the – that are viewed and available to the computer user upon installation. Some acknowledgements that have to be entered by the user in order to install the software, as well as there’s screenshots of the – of the actual software running with respect to downloading of a movie.

46From the description of how the Azureus file sharing program is installed given in evidence by Detective Constable Erkkila there are active steps to be followed to install this type of program on a computer. It would be difficult to believe that someone who was installing the Azureus program on their computer would not know that this program was a file sharing program where information and images could be downloaded from your computer to another computer which is also connected to the program, as put by Erkkila in his evidence, “When a person downloads this software, the terms of use and service must be agreed to before continuing the actual installation process”.

47With respect to the Azureus program that was installed on the Capancioni computer as a result of his investigation, Detective Constable Erkkila came to the following conclusion, as he indicated in his evidence:

The information that is available to the user on this computer makes it clear that the transfer of files goes into two directions. You have the availability to download information to your computer and it is an automatic process for you to upload that information to another computer. You cannot turn off sharing, it is a default setting such that you can limit the amount of data transferred to the outside world, but you can’t completely shut it off and these screens were meant and this report was meant to show that when you use a program of this nature, that you – that it is a two-way highway for file sharing.

48Detective Constable Erkkila, in his evidence, indicated with respect to the upload and download of different files, the Azureus program “would provide a user a lot of knowledge as towards the operation of the program and what’s going on”.

49The defence took the position that the court cannot infer that the user of the Capancioni computer would know or be wilfully blind that the Azureus program is sharing the data with other computers. The defence contends that the court cannot conclude or infer on the evidence that Robert Capancioni is a sophisticated computer user and therefore would have to know that information from his computer would upload to another computer or be wilfully blind to this fact.

50During cross-examination, Detective Constable Erkkila testified that you do not have to be physically at the computer when information is being downloaded. He agreed with the proposition put to him in cross-examination that somebody could share information before they actually see it. It is reasonable to conclude from the evidence given by Detective Constable Erkkila in cross-examination that it is possible that a person could share the information at the same time that the information is being downloaded without expressly knowing that the information is being shared.

51In considering the totality of the evidence in determining whether the offence of making child pornography available has been proven and in reflecting on the five essential elements of the offence as set out in R. v. Johannson, referred to in paragraph 18 of R. v. Beason, cited previously in these reasons, I am satisfied that the Crown has established Robert Capancioni as the offender, has established that the offence took place on December 31, 2012 when the material was downloaded to the police investigative computer, that the material downloaded were images of child pornography and that these images were made available by the accused, Robert Capancioni. Having said this, I can indicate that I am not satisfied beyond a reasonable doubt, in examining the totality of the evidence, that the Crown has proven that Robert Capancioni had the intent to make child pornography available to others. From the evidence it is entirely possible that Robert Capancioni was transferring images from his computer to another computer without expressly knowing that these images were being transferred.

52If the court has a doubt about whether an essential element of an offence has been proven by the Crown, the accused, in law, receives the benefit of that doubt. I am simply not satisfied, on the evidence, to the degree of certainty required that Robert Capancioni had the intent to make child pornography available for others. I am satisfied on the evidence that Robert Capancioni was in possession of child pornography but not that he intended to make child pornography available thereby committing an offence under section 163.1(3) of the Criminal Code of Canada.

53Accordingly, Robert Capancioni is found not guilty of the offence set out in Count 2 of the indictment.