ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Robert Kozak, for the Crown
- and -
Jeffrey Frederick Miro,
Christopher C. Watkins, for the Accused
Accused
HEARD: May 30, 2016,
at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Reasons For Judgment
1Jeffrey Frederick Miro is charged with possession of child pornography, pursuant to s. 163.1(4) of the Criminal Code, and making child pornography available, pursuant to s. 163.1(3) of the Criminal Code.
2Thunder Bay Police found evidence of child pornography on a laptop computer and an iPhone 5 which they seized from a home at 3233 Chilton Avenue, Thunder Bay, on April 10, 2014.
3The defence admits that child pornography was found on two of the devices seized from 3233 Chilton Avenue on April 10, 2014.
4The parties acknowledged that the evidence was seized in a manner that may have engaged issues of Mr. Miro’s rights under s. 8 of the Charter. However, following recent authorities, in particular the decision in R. v. Spencer, 2014 SCC 43, [2014] S.C.J. No. 43, the defence conceded the evidence would have been admitted under s. 24(2) of the Charter.
5Accordingly there were no Charter applications to exclude evidence during this trial.
6The Crown focused on the circumstantial evidence seized to argue that it has proven beyond a reasonable doubt that Mr. Miro both possessed and made available for distribution child pornography. The defence argues that the Crown has failed to prove its case and the deficiencies in the Crown’s evidence should lead to an acquittal of Mr. Miro.
The evidence of the Crown
7The first Crown witness was Detective Constable Willson.
8D/C Willson attended at 3233 Chilton Avenue, Thunder Bay, on April 10, 2014, to assist his partner, Detective Constable Dunnill, execute a search warrant of the premises. The two officers attended at approximately 8:28 that morning and were greeted at the door of the residence by Mr. Miro. The officers searched the residence. They went into the basement. D/C Willson picked up an iPad. It did not have a password. He opened an application called “Vine”. He saw that the application played a looping video that, in D/C Wilson’s opinion, was child pornography.
9At approximately 9:02, a person D/C Willson identified as Mr. Miro’s wife, Liz Arthurs, attended at the residence. At 9:40 am the officers left the residence.
10In cross-examination, D/C Willson admitted the Thunder Bay Police Service did not have the residence under surveillance prior to executing the search warrant. D/C Willson was present on April 7, 2014, when D/C Dunnill used a commercially available device called a “Canary” outside of 3233 Chilton Avenue to detect the presence of wireless signals in the vicinity. D/C Willson admitted the device was not expressly certified by his police department.
11Detective Constable Christopher Dunnill was the main witness for the Crown. On consent he was qualified to give expert opinion evidence in the area of forensic computer and cell phone analysis. D/C Dunnill explained that his expertise was, among other things, in the acquisition, capture and examination of computer data in a manner that would not corrupt or disturb the devices from which the data was obtained in any way.
12D/C Dunnill described in some detail the process of the investigation, including the investigation leading to the issuing of a warrant to search 3233 Chilton Avenue. This evidence was tendered for the purpose of context and not to prove that Mr. Miro was engaged in criminal activity. The Crown, however, relied on the child pornography seized from the computer devices found at 3233 Chilton and certain other computer files as circumstantial evidence that Mr. Miro is guilty of the offences as charged.
13Initially, Twitter, a now ubiquitous online social networking service that enables users to send and receive messages, notified American police authorities of suspicious traffic on one of its subscribers’ accounts. The user name, Twitter account and Internet Protocol (IP) address associated with the account was identified by American authorities as being present in Canada. The Americans contacted the National Child Exploitation Co-ordination Centre (“NCECC”) of the RCMP. The NCECC determined the IP address was one serviced by Tbaytel. A package was sent to the Thunder Bay police for investigation.
14The Thunder Bay police made a law enforcement request of Tbaytel. This was done prior to the decision in R v. Spencer, supra. The subscriber for the IP address identified by the NCECC was registered to Liz Arthurs. The network name was ‘Jeff and Liz’. D/C Dunnill consulted Thunder Bay police records to confirm that Liz Arthurs resided at 3233 Chilton Avenue.
15On April 7, 2014, D/Cs Dunnill and Willson attended on the public street in front of 3233 Chilton Avenue to deploy the Canary device. This publically available device detects wireless networks in the area. One such network detected was called ‘Jeff and Liz’. It was password protected.
16On the basis of this investigation D/C Dunnill swore an information to obtain, and was granted a search warrant for 3233 Chilton Avenue from a Justice of the Peace. The warrant was executed the morning of April 10, 2014.
17D/C Dunnill identified Mr. Miro as the person who greeted him at the door of 3233 Chilton that morning. D/C Dunnill went to the basement of the residence. He saw a number of computer devices. He saw D/C Willson pick up the iPad and saw the looping video on the Vine app that he agreed was child pornography. D/C Dunnill saw a laptop computer. He removed its hard drive. He attached a device known as a “write blocker” to the laptop. D/C Dunnill explained this device prevents any alteration of any kind to computer files as they are being examined by another device. D/C Dunnill examined the hard drive with his laptop. He did not locate any child pornography. He did, however, find a user name which had been identified by Twitter as being associated with suspicious material. He also believed from the information received from Twitter that a device with an operating system used for mobile devices manufactured by Apple Inc. had been used to exchange suspicious material. He found a number of iTunes backups for devices on the laptop. An iPhone was associated to the laptop by virtue of these backup files. On this basis he seized an iPhone 5 he found on the premises. He immediately switched the device to airplane mode so it could not send or receive any more data. The officers left the premises with seven devices.
18Ultimately, only two of the devices contained material which the defence admits was child pornography. One was an iPhone 5. One was a laptop.
19D/C Dunnill described the methodology and software he used to examine the iPhone 5. The iPhone 5 was not password protected. He did a file system dump of the iPhone. He was therefore able to review the memory of the mobile device. On this device he found 479 unique pictures of child pornography and six videos. He also looked at the chat files for the iPhone. On the device he found a login name “digop”. The data files on the device contained a database that captured all the texts and photographs that had been exchanged by this device. Based on his observations of the data extracted, he determined that child pornography had been transmitted and received through the iPhone 5.
20On the iPhone 5, D/C Dunnill was able to locate files that had been generated by a messaging service called “Kik”. Kik is an instant messenger application (app) for mobile devices which had been downloaded and used by the iPhone 5. The text of the Kik chats had been recorded in a file on the laptop. The actual text of the messages sent by the iPhone 5 of 35 separate chats were recorded. A printout of these chats were submitted into evidence as Exhibit 3. There was no objection to the admission of this evidence by the defence. Much of the chat is of an explicit sexual nature. The chats also had entries which were coloured blue on Exhibit 3 which appeared like hyperlinks on a computer screen. However, they were evidence of actual photograph files being used in the chat. Further, the nature of the link indicates that photos were exchanged between a person operating the iPhone 5 and other users of the Kik service. The defence admits the exchanged photos were child pornography.
21The user name of the person operating the iPhone, and sending and receiving the child pornography was “digop” and “Dig Op”. Following a more detailed search of the laptop, set out below, D/C Dunnill found evidence that data from this iPhone was stored on backup files on the laptop which had been seized.
22D/C Dunnill was also able to locate a screen capture image from the iPhone 5. It was entered as Exhibit 2. It is a Facebook login that shows a name, “Dig Oper”, and an email address: digops01@gmail.com.
23D/C Dunnill did a more comprehensive search on the hard drive of the Acer Aspire laptop which was seized. A software program utilized searched for key words present on files on the hard drive. The key words in files are significant as they allow other Internet users to more easily locate these type of files. Thirty entries for “pthc” associated to a file name were found. D/C Dunnill explained in his experience this stands for “Pre Teen Hard Core”. Fifty-four entries for “pedo” associated to a file name were found. D/C Dunnill explained in his experience this stands for “Pedophilia”. Thirty-seven entries were found for files having “Lolita” included in the names. It is a reference to a late 1950’s novel where the topic was an adult man’s sexual obsession with a twelve year old girl.
24D/C Dunnill located an iTunes backup folder on the laptop. It was located inside a Windows account entitled “Miro Jeff”. Child pornography was located in these backup files. According to D/C Dunnill, when a person is a user of the Apple Inc. product “iTunes”, the program differentiates and keeps track of which particular Apple device owned by a person, be it an iPhone, or an iPad, or an iPad mini etc., is being used to download or store particular files. This data was stored in an iTunes backup file on the laptop called “manifest.plist”. This is done to permit “syncing” between Apple devices. In the case of a person who is running iTunes on multiple devices, D/C Dunnill explained this facilitates recovery of data in the event it is lost or corrupted on a particular device.
25In the iTunes backup files on the laptop, D/C Dunnill found evidence that associated the files containing child pornography with a file called “Jeff Miro’s iPhone”. D/C Dunnill had the serial number for the iPhone 5 which had been seized. This very same serial number was listed as being associated with the file “Jeff Miro’s iPhone” in the manifest.plist file on the laptop. D/C Dunnill testified that based on his investigation, it was absolutely his opinion that the Acer laptop computer seized was backing up files, and had been for over two years, for the iPhone 5 that was seized from 3233 Chilton Avenue, Thunder Bay.
26D/C Dunnill also found file evidence that the messaging program Skype had been used on the laptop. Two user names were associated with the Skype accounts; one was “MiroJeff”, and the other “Digops1”.
27Within the iTunes backup files on the laptop were 794 unique child pornography photos which came from Jeff Miro’s iPhone. Also, there were eight child pornography videos. All of the child pornography was located in the Windows user account on the laptop called “Mirojeff”.
28In examining the laptop, D/C Dunnill was able to identify that its Windows’ operating system was identified as being owned by “Jeff Miro”. The Windows user account was called “Miro Jeff”. The Microsoft Office software package resident on the laptop listed “Jeff Miro” as the owner. The account name for the Microsoft Office software was “Miro Jeff”. The investigation software used by D/C Dunnill indicated the last logged-on user to the laptop before it was seized was a user called “Mirojeff”.
29The defence did not call evidence at this trial.
Position of the parties
30The Crown submits it has proven beyond a reasonable doubt that Mr. Miro both possessed and did make available child pornography between December 28, 2013, and April 9, 2014. It relies on the physical evidence obtained from the two devices seized on April 10, 2014. It is admitted that child pornography was found on both devices. It is admitted the iPhone 5 sent and received child pornography photograph files.
31The Crown relies on the name found within the ownership identifying files on the laptop such as the Windows registration file, and the user name file specific files to prove the owner of the laptop as Jeff Miro. It argues the evidence proves beyond a reasonable doubt that the iPhone 5’s child pornography files were being saved on the laptop. It asks the Court to draw the inference that because the laptop bearing Mr. Miro’s name was backing up files from another device, that mobile device was also at all material times owned and operated by Mr. Miro. It points to the texts of the chats to argue that they were being written by a male. It points specifically to a text of March 3, 2014, where the user digop says “if I may ask, how old are you? and what country r u from? I’m 50 from Canada” as evidence that digop is indeed Mr. Miro who was born in 1961 and resides in Thunder Bay.
32Despite the fact that the iPhone 5 itself did not have file names that expressly listed the device as belonging to the accused, the backed up files on the laptop do identify child pornography files coming from the iPhone 5 with a user name “Jeff Miro’s iPhone”. As the iPhone 5 was exchanging child pornography, the Crown submits that Mr. Miro should be convicted of the two offences with which he is charged.
33The Defence argues the Crown has not proven its case beyond a reasonable doubt. Reasonable doubt arises from the evidence that the Crown has not led. The defence argues no direct evidence was led linking Mr. Miro to the devices seized. There was no DNA evidence led. There was no evidence of other persons observing Mr. Miro using the devices. There was no evidence about who owns 3233 Chilton Avenue. There was no evidence about who lives at 3233 Chilton Avenue. The actual IP address for anyone living at 3233 was not introduced at trial. There was no evidence about who actually bought the computer, or who held any warranty for the computer.
34The Defence argues the key factors linking Mr. Miro to the two devices are not present. As such he is entitled to an acquittal.
The law
35Neither counsel provided the Court with any authorities. “Possession” is defined in section 4 of the Criminal Code, as follows:
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.
36A leading case concerning issues of possession of child pornography is the decision of the Supreme Court of Canada in R v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8. In that decision, Fish J. writing for the majority said at paragraphs 15 through 19:
15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.
16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "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" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
18 Here, the appellant is alleged to have had possession of digital images in a computer, rather than tangible objects. The law of possession, however, developed in relation to physical, concrete objects. Its extension to virtual objects -- in this case, images stored as digital files and displayed on computer monitors -- presents conceptual problems. Unlike traditional photographs, the digital information encoding the image -- the image file -- can be possessed even if no representation of the image is visible. Likewise, even if displayed on a person's computer monitor, the underlying information might remain firmly outside that person's possession, located on a server thousands [page267] of kilometres away, over which that person has no control.
19 Essentially, there are thus two potential "objects" of possession of an image in a computer -- the image file and its decoded visual representation on-screen. The question is whether one can ever be said to be in culpable possession of the visual depiction alone, or whether one can only culpably possess the underlying file. Canadian cases appear implicitly to accept only the latter proposition: That possession of an image in a computer means possession of the underlying data file, not its mere visual depiction.
37It is acknowledged by the Crown that its case rests solely on circumstantial evidence. In a circumstantial evidence case, in order to base a conviction on this type of evidence alone, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the proven facts is the guilt of the accused. If I find that alternative rational inferences can be drawn from the evidence, the defence will have raised a reasonable doubt. (R v. Cooper, [1978] 1 S.C.R. 42 as set out by E.M. Morgan J. in R v. Bobb, [2015] O.J. No. 5334.)
Discussion
38I first propose to deal with the defence argument about the technology used by the police to extract files from the two devices seized. The evidence of D/C Dunnill was clear that the software and devices he used to extract the computer files that were ultimately placed before the Court as exhibits were not approved by any external body or routinely tested to determine if they were was operating properly. The defence suggested a reasonable doubt is raised about D/C Dunnill’s evidence as a result. The defence used the analogy of the stringent testing required of the police when they use an Intoxylyzer machine.
39The evidence of D/C Dunnill was that the software and computer tools he used were in the nature of detectors and organizers. The software and devices he used copied or removed files out of the seized devices and then organized them so D/C Dunhill, and not the software, could draw conclusions about what was present. These programs did not give readings or analytical data that was independent of the files they were extracting from the devices seized. This is to be contrasted with the actions of an Itoxylyzer machine which independently draws conclusions or does analysis on a physical sample provided to it. The analytical results of the Itoxylyzer stand as independent evidence of a proposition that has legal significance (alcohol content of a breath sample). This makes it significant to assure that the tool is routinely tested and functioning. Here, the computer files taken from the seized devices were assessed by the police, not by the software, to come to conclusions, which ultimately will be tested by the proof beyond a reasonable doubt standard in this Court.
40There is also a presumption of integrity of electronic documents granted by the provisions of s. 31.3 of the Canada Evidence Act, R.S.C. 1985 c. C-5. D/C Dunnill testified about how the software worked and, in particular, how at least one device has an external red light that a user must observe to ensure the device is functioning properly. No evidence to the contrary was placed before the Court that would lead me to conclude the software utilized by the police was not functioning. Further, the computer files were at first instance stored in a device of the accused, a person adverse in interest to the Crown in this proceeding.
41It appears counsel for the accused in this case also made a similar argument in a child pornography possession case argued in 2014, R v. Lysenchuk, 2014 ONSC 6837. In that decision, Shaw J. at paragraph 40 agreed with the Crown that the devices attempted to be impugned by the defence were investigative tools and did not have to be approved or tested. I agree with the reasoning of Shaw J. in that case. I do not agree that a reasonable doubt is raised by the lack of testing or approval of the equipment or software used by the police in this matter
42I am now going to make a number of findings based on very clear evidence and which was not contested by the defence.
43I find that only two people were present at 3233 Chilton Avenue, Thunder Bay, on the morning of April 10, 2014. A man, the accused, and a woman, Liz Arthurs. I have no other evidence that any other persons were occupying or present at the residence at that time or any other time material to the matters before the Court. I find that Mr. Miro occupied that residence on that day. He answered the door. It was 8:30 in the morning. He did not leave. Absent any other evidence, common sense tells me he lived at 3233 Chilton Avenue, Thunder Bay, and was in possession of the premises.
44In that residence on that day, the police seized two devices. One device was an Acer laptop computer. The other device was an iPhone 5. On the evidence it is clear that the two devices seized by the police contained child pornography.
45The Acer laptop contained backup files from the iPhone 5. A portion of those files contained the actual text messages and copies of images of child pornography that were sent and received over the Internet by an operator of the iPhone 5. The user of the phone used the main handle “digop”. I make that finding based on a plain reading of the texts which came from the files which originated from the iPhone.
46There was no objection to the evidence, Exhibit 3, when it was tendered. Copies of the actual files were also tendered as Exhibit 4. A portion of those files were shown on a monitor during the trial. The files contained pornographic material of children. The thumb drive was made Exhibit 4. It is password protected.
47As noted, no objection to the hearsay nature of the chat entries in Exhibit 3 was made during the trial. The printouts of the texts were admissible as an aid to assist the court in being able to easily deal with this one very relevant file among all the others extracted from the two devices. As noted, a copy of all the extracted files were made a physical exhibit in the trial as Exhibit 4.
48I am prepared to consider the texts for truth of their contents based on a number of exceptions to the hearsay rule. Section 31.2(1) of the Canada Evidence Act makes these printouts the best evidence of the electronic document at issue, as I am satisfied by the evidence of D/C Dunnill that the police system maintained the integrity of the electronic documents, which were filed on the thumb drive as Exhibit 4. Also, it is clear these files originated on the seized devices. The owner of the devices was obviously adverse to the police.
49The texts are also admissions of the actus reus of the offence of making available child pornography.
50I am also prepared to accept and admit these records based on the principled exception to the hearsay rule. In my view, Exhibit 3 meets the tests of both reliability and necessity. The document is a printout of a reliable electronic record. I have discussed why I find the electronic document reliable in earlier paragraphs. The document is necessary to the matters at issue as it indicates activity as evidenced by the words used in context of the exchange of electronic files. The relevant act in this matter is the making available of child pornography. In this matter, it was made available by electronic means over the Internet on an electronic messaging system. This makes admission of this evidence necessary to the matters at issue.
51Exhibit 3 is analogous to a series of letters evidencing the exchange or even a transcript of the events where digop was trading child pornography. It shows the time and date of the exchange. It shows the words used. It indicates files were exchanged following the use of certain words which indicate an exchange was contemplated, executed and then acknowledged.
52In my view, it is also real evidence in so far as I have the opportunity to observe the words and the pictures, as I did for one of the photos, and draw my own conclusions as to what was occurring.
53For example, the very first exchange contained in Exhibit 3 would give any adult reader a very good idea of the gender of digop, and what he was doing on Kik. The chat starts on February 23, 2014, and then continues on February 26, 2014. The text is set out at Schedule 1 of this decision. I will read it into the record now. It is indicative of a male writing the texts, as common sense tells us that females do not refer to their “cocks”.
54Following the initial chat of February 23, 2014 user “bronsonjb” asks his “friend” digop to “send me a couple of pics. got new person to trade with but got rid of all mine.n il pass them on. Cheers”. Four photos which the defence acknowledge are child pornography are then sent by digop according to the interpretation of the text links provided by the evidence of D/C Dunnill. Bronsonjb then says “Thanks bud”. Digop responds “np” (“no problem”). Bronsonjb then forwards six photos. The defence acknowledge these are child pornographic images. Digop then thanks Bronsonjb for the photos.
55From this evidence, given the words used in relation to the links where photographs are electronically exchanged, there is no question in my mind that a male, digop, is transmitting, making available, and possessing child pornography. He is also possessing it for the purpose of transmission and making it available. Knowledge of what is being transmitted is clearly evidenced by the texts that precede and follow the exchange of the photos.
56Knowledge of the illegal nature of the exchange is evident from the words. For example, digop gives advice on at least one occasion to another “consumer”. On March 3, 2014, in a chat with “designedink” he advises “TorProject.org is legal, but gets u to the pedo sites and boards and blogs, but remember do not peer to peer, that’s how they get caught by trading with others”. From this evidence it is clear to me digop knows he is trading in illegal material.
57There are numerous other examples in the chat which would lead a reasonable person to the conclusion that digop is a male, and actively and with full knowledge in what he possesses, trading in child pornography. On one occasion, digop is asked if he is a guy and he replies “lol yup”. He also refers to himself as a “Str8 guy”. I interpret this to mean a heterosexual male. One user actually asks digop if he is female. To this he replies “no”. There are other references to “exchange of pix and videos” to “kids”, to “preteens” to “young girls” to “teen jailbait” and slang for the male anatomy and masturbation. Given the subject matter, I do not think it necessary to repeat all those occasions in this judgment. Exhibit 3 speaks for itself in that regard.
58The defence seeks an acquittal on the basis that the Crown has not proven beyond a reasonable doubt that Mr. Miro possessed the devices that both contained and distributed child pornography. Defence counsel put the matter squarely to the Court, when he argued that the real issue was whether or the Crown had proven beyond a reasonable doubt that Mr. Miro possessed the two devices at issue and that was he actually the user of the iPhone 5 going by the Internet handle “digop”.
59In my view, the Crown has proven beyond a reasonable doubt that Mr. Miro was in possession of both the iPhone 5 and the Acer laptop computer within the timeframes set out in the indictment. I make that finding for the following reasons.
60Contrary to the argument of the defence—that more is needed to demonstrate possession of the devices—I find that a number of facts proven in the evidence leads to the conclusion beyond a reasonable doubt that Mr. Miro was in possession of both the laptop and the iPhone. First, he was present at a residence at 8:30 in the morning where the officers found both the laptop and the phone. The devices were in the basement of the residence. At the time, and for approximately the first 30 minutes while the officers were at the residence, Mr. Miro was the only one there. He did not leave. Absent any other evidence, this leads me to conclude he is the owner of any and all physical items that are contained within the residence. However, another person showed up at the residence at about 9 am. This was Liz Arthurs. A female. The defence argues the laptop could have belonged to her. In my view, there is other evidence given at this trial which is proof to the contrary.
61First, Mr. Miro’s name, and no other name, is on various files within the laptop that are designed to connote ownership. These files include the Windows’ operating system file identified as being owned by “Jeff Miro”. The next file was the Windows user account called “Miro Jeff”. Following that was the Microsoft Office software package resident on the laptop listing “Jeff Miro” as the owner. Finally, the account name for the Microsoft Office software on the laptop was “Miro Jeff”. All of these facts lead me to the conclusion that the accused owned the laptop and he was in possession of it on April 10, 2014.
62Recall that the evidence of D/C Dunnill was that the laptop contained 794 unique images of child pornography. These were not cache files. These were actual saved files.
63Like the Acer laptop, the iPhone 5 was found in the same premises as Mr. Miro on the morning of April 10, 2014. There was no evidence that the iPhone 5 itself contained files designed to connote ownership. What was clear is that the user of the iPhone 5 was a person who had sent out texts from the phone and did so identifying himself to cyberspace as “digop”.
64On the laptop, D/C Dunnill located evidence that a person using the laptop identified themselves on Skype by two user names; one was “MiroJeff”, and the other “Digops1”. I find the “MiroJeff” user on Skype was the accused Jeffery Frederick Miro. I do so because of the similarity of his name to this user name.
65I also find the “Digops1” Skype user was the accused Jeffery Frederick Miro. I find this because it was a Skype file found on a computer owned by him. In my view, the Internet names “Digops1” and “digop” are sufficiently similar to come to a common sense conclusion that the user of both names is one and the same person. On that basis, I find that the accused used the Internet handle Digops1, Dig Op and digop when he engaged in online chats during times covered by the present indictment.
66There is also other evidence I find persuasive that the user of the iPhone 5 was the accused. The best evidence was the backup files found on the laptop that I have found belonged to Mr. Miro. The ITunes backup files on the laptop for the iPhone 5 bearing the serial number of the device seized by the police, identified the files for the iPhone 5 as “Jeff Miro’s phone”. This to me proves the iPhone 5 belonged to the accused Jeffery Frederick Miro.
67As noted above, I find that the user “digop”, was in fact Jeffery Frederick Miro, who was transmitting and making available child pornography commencing in February 2014. There are various transactions involving the transmission and receipt of photos continuing until March 27, 2014. These transactions indicate knowledge of the nature of the material as is required by the provisions of s. 4 of the Criminal Code.
68For all of the above reasons, I find that on or about April 10, 2014, at the City of Thunder Bay, in the said region, Jeffery Frederick Miro did have in his possession child pornography contrary to s. 163.1(4) of the Criminal Code. Also, for all of the above reasons, I find that between February 23, 2014, and March 27, 2014, Jeffery Frederick Miro did make child pornography available contrary to s. 163.1(3) of the Criminal Code. Convictions will be registered for the two counts before the Court.
“original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: August 5, 2016
CITATION: R. v. Miro, 2016 ONSC 4982
COURT FILE NO.: CR-15-0055
DATE: 2016-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
Jeffrey Frederick Miro,
Accused
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: August 5, 2016
/mls