R. v. Beierle, 2017 ONSC 1520

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Beierle, 2017 ONSC 1520

COURT FILE NO.: CR-15-1-664

DATE: 20170310

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

SIGFRID BEIERLE

Jennifer Gibson, for the Crown

Keely Duncan, for the accused

HEARD: January 23-27, 30, 2017

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4(3) of the Criminal Code, directing that any information that could identify any person who is the subject of a representation, written material or a recording that may constitute child pornography within the meaning of s. 163.1 of the Criminal Code, shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

K.L. Campbell J.:

I

Overview

1The accused, Sigfrid Beierle, currently faces an indictment that charges him with two counts of possession of child pornography. The first count of the indictment alleges that the possession offence was committed during the five week period between September 12 and October 20, 2012. The third count of the indictment alleges that the possession offence was committed on or about October 21, 2014, the day the accused was arrested and members of the Toronto Police Service (TPS) executed a search warrant at his small, one-bedroom, second floor apartment over a store on Davenport Road in Toronto.

2The key distinguishing feature between these two possession charges is that, in relation the first count, which alleges the unlawful possession of child pornography over the period of approximately five weeks between September 12 and October 20, 2012, the Crown asserts that the accused was in possession of certain specific child pornography files downloaded from a particular website (i.e. lumfile.com). The third count of the indictment is a more generic allegation that the accused was in possession of a variety of child pornography on the date of his arrest.

3Further, in the second count of the indictment the accused faces an additional charge, alleging that he accessed child pornography during the period of nearly 25½ months between the dates of September 12, 2012, and October 21, 2014.

4When the police executed their search warrant on October 21, 2014, they found the accused in his bedroom, and they seized four computer devices that belonged to the accused, namely: (1) a one terabyte hard drive from the desktop computer tower located in the corner of the accused’s bedroom; (2) an 80 gigabyte hard drive from that same desktop computer tower located in the corner of the accused’s bedroom; (3) a hard drive from a Toshiba laptop computer found inside a glass cabinet beside the fireplace in the accused’s bedroom; and (4) a Fujitsu hard drive found in a grey plastic container in the second floor hallway leading to the accused’s bedroom. The police discovered images and/or videos of what is obviously, and admittedly, “child pornography” on all four of these computer devices.

5The main issue in this case is whether the Crown has established beyond a reasonable doubt that the accused knowingly accessed and possessed this child pornography, as alleged in the indictment.

II

The Governing Legal Principles

a. The Presumption of Innocence and the Burden of Proof on the Crown

6The accused is, of course, presumed to be innocent. That presumption of innocence remains with the accused unless and until the Crown establishes his guilt for all of these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 682-683, 687.

7An accused need not testify in his defence and, if the accused elects to remain silent in the face of criminal allegations, as Mr. Beierle has elected to do in the present case, no adverse inference can properly be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See R. v. Prokofiew, 2012 SCC 49, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 72; R. v. Tomlinson, 2014 ONCA 158, at paras. 97-98.

8It is also important to recall the nature of the heavy burden of proof cast upon the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

b. The Separate Offences of Accessing vs. Possession of Child Pornography

9According to s. 4(3)(a) of the Criminal Code, R.S.C. 1985, chap. C-46, a person has anything in his “possession” when he has it “in his personal possession,” or when he “knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the benefit of himself or of another person.” While the accused in this case was certainly in “personal possession” of the four computer devices, one of the key issues in dispute between the parties is whether the Crown has established that the accused was in “constructive possession” of the videos and images of child pornography found on those devices.

10The law is clear that, in order for a person to be properly found to be in “constructive possession” of child pornography on their computer device, the Crown must establish that the person knowingly had images of child pornography on their computer, and intentionally stored the images there for their own use or benefit. In other words, the Crown must prove that the accused: (1) had knowledge of the character of the child pornography images; (2) knowingly put or kept the images on his computer device; and (3) intended to maintain the images on his computer device for his “use or benefit” or that of another person. Such proof will establish that the accused had the requisite knowledge of the nature of the images and intentionally exercised the necessary measure of control over those images. See R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 538, 541-542; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, at pp. 362-364; R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at para. 15, affirmed, 2006 SCC 26; R. v. Chalk, 2007 ONCA 815, at paras. 18-20; R. v. Morelli, 2010 SCC 8, at paras. 14-17; R. v. Provost, 2011 ONCA 437, at para. 10; R. v. Bui, 2014 ONCA 614, at para. 34; R. v. MacDonald, 2014 SCC 3, at paras. 53-55; R. v. Tyrell, 2014 ONCA 617, at paras. 29-30, 36; R. v. Midwinter, 2015 ONCA 150, at paras. 12-14.

11Of course, “accessing” child pornography is an entirely separate and distinct crime from the offence of “possession” of child pornography. According to s. 163.1(4.2) of the Criminal Code, a person “accesses” child pornography who “knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.” In light of this statutory definition, it is apparent that a person may unlawfully “access” child pornography without actually being in “possession” of the child pornography. For example, knowingly viewing an image of child pornography over the internet, through a web browser, would certainly amount to “accessing” child pornography, while such viewing would not, without more, amount to “possession” of the child pornography. See R. v. Morelli, at paras. 14, 25. The judicial authorities suggest that, in order to support a charge of “possession,” the Crown must prove that the accused was engaged in “downloading” child pornography onto his or her computer device. See R. v. Farmer, 2014 ONCA 823, at paras. 27, 36; R. v. Villaroman, 2016 SCC 33, at paras. 57-62. Indeed, it seems that, in creating the separate offence of “accessing” child pornography, it was the intention of Parliament to criminalize the conduct of those who “intentionally view child pornography on the internet” in circumstances were the “legal notion of possession may be problematic.” See R. v. Morelli, at paras. 25-27.

12As Fish J. summarized in R. v. Morelli, at paras. 65-66, “merely browsing a website or viewing images onscreen does not constitute possession.” In order to commit the offence of possession of child pornography (as opposed to the offence of “accessing” child pornography), a person “must knowingly acquire the underlying data files and store them in a place under one’s control” by, for example, taking the underlying data file into his or her control “by saving it to the hard drive” of a computer.

III

Analysis of the Evidence

a. The Accused Had Exclusive Possession of the Various Computer Devices

13The evidence overwhelmingly establishes that the accused had personal possession and control of the various computer devices that were seized and searched by the police.

14The accused clearly lived alone in the small, one bedroom, second floor apartment on Davenport Road in Toronto that was searched by the police, and which contained most of the seized computer devices. When the police executed their search warrant, they found the accused alone in his bedroom, in a state of undress. The police briefly detained him, permitting him to dress, and then released him to allow him to exercise his right to counsel as he wished.

15In searching the apartment, the police found documentation that confirmed that the accused lived in the apartment. For example, the police found: (1) his Government of Canada issued Permanent Resident Card; (2) his United States of America Passport and Passport Card; (3) a copy of his resume outlining his personal work experience, education and various job qualifications; (4) a Hydro bill addressed solely to the accused at that apartment address; and (5) a pay stub from his employer.

16There was no evidence that suggested that anyone other than the accused might have been living in the apartment, or that it was a shared accommodation. Indeed, the small size and nature of this one-bedroom apartment, including its contents and overall appearance, effectively precluded the notion that it could have been a shared accommodation.

17In an admittedly voluntary video recorded interview statement to the police that he provided upon his arrest, the accused admitted: (1) that he lived in the apartment searched by the police, and had been living there since July of 2014; (2) that the “stuff in the hallway” belonged to him; (3) that the things in the kitchen were his, and he did not share that space with the owner of the building, who kept some things in two other locked rooms on the second floor; (4) that he had his own internet access, through a router, provided by CIK Telecom; and (5) his devices, including his computer, were “password protected,” and that no one other than himself had the password.

18It is readily apparent that the accused was, at the time of his arrest on October 21, 2014, using the computer setup located in the corner of his bedroom apartment. There was a small computer table with a monitor and keyboard. It was right next to another small table, holding a Cannon printer/scanner. This area was surrounded by drink glasses and empty “Mountain Dew” soda pop cans. There were some speakers located underneath the computer table. The computer tower, that contained both the one terabyte hard drive and the 80 gigabyte hard drive, was located right next to the computer table, and it was hooked up to the monitor and keyboard. A nearby CIK Telecom router was providing access to the internet. The police photographs of this particular setup in the corner of the accused’s bedroom leave no doubt that the accused was regularly using this computer.

19The police also discovered evidence on some of the computer devices themselves that suggested that they were owned and controlled by the accused. For example, on the hard drive from the Toshiba laptop computer and on the one terabyte hard drive from the desktop computer tower, the police found a number of “selfie-style” videos of the accused, that appeared to be “backup” copies or “camera uploads.” These are, of course, the kinds of videos that would be found on computer devices owned by the individual recorded in the videos.

20Further, on the one terabyte hard drive from the desktop computer tower, the police discovered: (1) Skype accounts and voicemails that identify the accused by name (or by his admitted nickname “Zak”), his email address and date of birth, and provide a profile photograph of the accused; (2) Windows Live Messenger texts that identify the accused by name (or his nickname), provide his physical description, his place of birth in the United States, and describe his German-American heritage; (3) email correspondence that identifies the accused by name and with his email address; and (4) electronic copies of the accused’s immigration papers, his immigration card, his resume, and some of his employment related documents.

21In summary, as I have indicated, in my view, this body of evidence overwhelming establishes that, at the time of his arrest on October 21, 2014, the accused had exclusive possession and control over the various computer devices that were seized by the police from the accused’s bedroom and the adjoining hallway.

b. The Child Pornography Found on the Various Computer Devices

22When the four computer devices seized by the police were forensically examined, the following was discovered:

• The One Terabyte Hard Drive: On the one terabyte hard drive taken from the desktop computer tower located in the corner of the accused’s bedroom, the police found 2,682 images of child pornography and five videos of child pornography in plain sight, and 836 images of child pornography and 74 videos of child pornography that were not in plain sight. With respect to the images of child pornography that were found in plain sight on this device, they were all created on the device between January 16, 2011 and October 16, 2014.

• The 80 Gigabyte Hard Drive: On the 80 gigabyte hard drive taken from the same desktop computer tower located in the corner of the accused’s bedroom, the police found 336 images of child pornography that were not in plain sight. There were no images of child pornography that were in plain sight on this device.

• The Toshiba Laptop: On the hard drive from a Toshiba laptop computer found inside the glass cabinet next to the fireplace in the accused’s bedroom, the police found 15 images of child pornography in plain sight, and 186 images of child pornography that were not in plain sight.

• The Fujitsu Hard Drive: On the Fujitsu hard drive found in a grey plastic container in the hallway leading to the accused’s bedroom, the police found one video of child pornography that was in plain sight, but no images of child pornography in plain sight, and four images of child pornography and one video of child pornography that were not in plain sight.

23Police witnesses explained that images and videos were described as being in “plain sight” if they were “readily accessible” by any average computer user, without any special action, software, or technical expertise. On the other hand, images and videos were classified as being “not in plain sight” if they were not readily accessible by an average computer user. Images and videos that were not in plain sight included ISO archival disk images, “thumbnail” images, images or videos that have been deleted from the recycle bin, and images or videos being overridden in that they only existed in the “unallocated” space on the computer disk.

24Many of the images of child pornography that were not in plain sight on the one terabyte hard drive from the desktop computer tower were cached images. Indeed, in their file name, these images are described as being “thumbcache” images, or simply “cache” images, and their name indicates that they originated from the “Explorer” web browser, or simply the “Browser.”

25With respect to the physical location of the “plain sight” images and videos of child pornography discovered on the one terabyte hard drive taken from the desktop computer tower located in the corner of the accused’s bedroom, the police did not observe any particular efforts being employed by the user of the computer to organize, categorize, or group these files. More specifically, there was no discernible effort by the computer user to, for example, organize the images or videos according to age or gender of the subjects, or the nature of the sexual activity depicted. However, some of the images appeared to have been downloaded as a group at the same time, and some of these images appear to have been deliberated saved to a readily accessible location on the computer. For example, as revealed by the file paths of some of these images, there was a folder called “Teen Selfies” located on the “desktop” of the computer in the accused’s bedroom, and this folder included numerous images of naked young males, some apparently as young as 10 to 12 years of age, with erections and masturbating or engaged in other types of sexual activities, alone and with others. This was not the only such “desktop” folder. Other folders, less obviously named, but which also included images and videos of child pornography, were also located in “plain view” on the computer “desktop,” and were, accordingly, similarly readily accessible to the user of the computer.

c. The “Lumfile” Downloads

26During the course of their broader investigation, the police ascertained that 16 compressed “rar” files, from the lumfile.com website, had been downloaded to the single, unique Internet Protocol (IP) address assigned to the accused. However, the police were only able to obtain 10 of these files, and were only able to access three of these files, as the files were all password protected, and the police were only able to obtain the one password that permitted access to three of these “rar” files. As the “rar” files were all compressed files, they had to be unzipped or decompressed to discover their contents.

27As to the dates that these “rar” files were downloaded, the investigation revealed that three files were downloaded on September 30, 2012, two files were downloaded on October 8, 2012, and 11 files were downloaded on October 20, 2012. The three files that were all downloaded, within a brief span of some 31 seconds at approximately 10:06 a.m. on September 30, 2012, were the “rar” files that the police were able to access through the available password.

28According to the available payment information, lumfile.com was notified that the payment of $12.99 (for a 30 day membership to the website), had been made by the accused, through a third party payee, on October 20, 2012, the date that 11 of the files were downloaded. In making this payment, the accused provided his name and email address, and his geographic location and postal code in Toronto. The necessary password needed to access the downloaded files was passed along through the email address that was provided by the accused.

29Without detailing the contents of the three “rar” files that the police were able to access, a sampling of the videos and images taken from these three lumfile downloads reveals that they clearly constitute child pornography, as admitted by the accused. Generally speaking, this sampling reveals nude, young prepubescent females, anywhere between three and 12 years of age, being subjected to various sexual activities by adult males.

30Importantly, none of these downloaded lumfile “rar” files were discovered by the police on any of the computer devices seized from the accused’s apartment. The police undertook an especially detailed search of these computer devices, expressly for the purpose of potentially discovering if any of these particular child pornography files were on the computer devices seized from the accused. The police sought, more specifically, to find any child pornography files on the computer devices seized from the accused where the unique “hash values” of the files matched the “hash values” of the downloaded “rar” files from lumfile.com. But, in the result, the police did not discover a single matching file. Apparently, the downloaded files must have been deleted by the computer user, and were eventually overwritten by other files.

d. User Was Searching for Child Pornography – And Receiving Child Pornography

31With the assistance of an investigative software program called “Internet Evidence Finder,” the police were able to capture internet search terms that had previously been employed by the user of the various computer devices. The computer user employed the Google, Yahoo and You Tube search engines to conduct such internet searches.

32Most significantly perhaps, from the one terabyte hard drive taken from the desktop computer tower located in the accused’s bedroom, the police discovered that between March 15, 2012 and June 5, 2014, the user of this computer device had, on many occasions, employed the Google search engine to try to find child pornography. More particularly, in addition to numerous inquiries about the legality of “child porn” in other countries, and the age of consent for sexual activities in Canada and other countries, the search terms frequently employed by the computer user included, for example: (1) nude young boys; (2) child prostitution; (3) tumblr young boys; (4) child pornography (cp porn); (5) pre-teen hard core (pthc); (6) illegal uncensored young japan porn; and (7) current active child porn sites. The police also discovered that similar search terms had been employed by the user of the Fujitsu computer hard drive.

33The “Internet Evidence Finder” was also employed to assist the police in finding how some of the child pornography images on the one terabyte hard drive from the desktop computer in the accused’s bedroom had been received. More particularly, the police discovered that between January 16, 2009 and April 9, 2011, the user of this hard drive had been receiving “usenet binary files,” from various “news groups” such as “alt.fan.prettyboy,” of images of naked or nearly naked, young, pre-pubescent, pre-teen boys, with a primary focus upon their genitals.

IV

Conclusions

a. Possession of Child Pornography on October 21, 2014 (Count Three)

34First, I am satisfied beyond a reasonable doubt that the accused was knowingly in possession of child pornography on the date of his arrest, October 21, 2014, as alleged in count three of the indictment. Accordingly, he is found guilty of this offence.

35Most significantly, as I have indicated, on the one terabyte hard drive from the computer tower in the corner of the accused’s bedroom, the police found 2,682 images of child pornography and five videos of child pornography in “plain sight,” and another 836 images of child pornography and 74 videos of child pornography that were not in plain sight. The images that were found in plain sight on this hard drive were created on this device over a period of close to four years, namely, between January 16, 2011 and October 16, 2014.

36While these child pornography files may have been but a small percentage of the overall number of files on this very large computer hard drive, the fact remains that this was still a substantial collection of child pornography. Similarly, the fact that some of the images and videos may have been downloaded together as a group does not undermine the significance of the overall size of the collection.

37Further, it is not as if this was the only one of the accused’s computer devices that revealed the presence of child pornography. The other three computer devices in his possession (i.e. the 80 gigabyte hard drive from the computer tower, the hard drive from a Toshiba laptop computer, and the Fujitsu hard drive from the container in the hallway) also contained images and/or videos of child pornography, some in plain sight and others not in plain sight.

38Reason and common sense suggest that the accused knew full well that these images and videos of child pornography were in his possession and control, at least on the one terabyte hard drive in his computer tower, as some of the images on that device were stored in plain sight on the “desk top” of his computer. Indeed, in my view, the accused could not have looked at the desktop of his computer without realizing that child pornography files were on his computer.

39It is certainly possible, at least theoretically, for an unsophisticated computer user to download files that unknowingly turned out to contain images or videos of child pornography. At the same time, however, it is difficult to believe that a computer user who frequently, and over a significant period of time, combs the internet, through the powerful Google search engine, looking specifically for child pornography, might somehow not know that such child pornography had been, in fact, downloaded onto his computer. Rather, the only reasonable conclusion that can be drawn in such circumstances is that, through his diligent Google search efforts, the accused successfully located and intentionally downloaded the child pornography files he seemed so intent on securing. That is the factual inference that I am logically compelled to draw in all of the circumstances of the present case.

40The accused was in constructive possession of the child pornography on his computer devices as he not only knew that the images and videos were present on his computer devices, but that he had intentionally downloaded those images and videos to those devices in order to store them there for his own personal use and benefit. To paraphrase the language used by Fish J. in R. v. Morelli, at para. 66, the accused knowingly acquired the underlying data files of the child pornography images and videos, and intentionally stored those data files on the hard drives of his computer devices so that they would remain under his control, and where he could maintain them for his subsequent personal use and benefit.

41In short, I am satisfied beyond a reasonable doubt that the Crown has established that the accused had the required knowledge of the nature of the child pornography images and videos, and intentionally exercised the necessary measure of control over those images and videos. In my view, there is simply no other reasonable conclusion or rational inference that can properly be drawn in all of the circumstances of this case. See also R. v. Griffin, 2009 SCC 28, at paras. 33-34; R. v. Farmer, at paras. 27, 36; R. v. Villaroman, at paras. 57-62.

b. Accessing Child Pornography (Count Two)

42I am also satisfied beyond a reasonable doubt that the accused accessed child pornography during the period of nearly 25½ months between the dates of September 12, 2012, and October 21, 2014, as alleged in count two of the indictment. Accordingly, he is also found guilty of this offence.

43As defence counsel argued, there is no direct evidence: (1) that the results of these numerous internet searches returned any images or videos of child pornography, or even returned any links to websites that may have contained such images or videos; or (2) that the accused ever knowingly accessed any results of these searches that did return images, videos or internet links to child pornography. Defence counsel argued that, in the absence of such direct evidence, the Crown has not established the commission of this offence with the requisite degree of certainty, as the accused might simply have turned off his computer immediately after conducting his many internet searches for child pornography, or at least may not have subsequently accessed any potentially available child pornography.

44Nevertheless, the circumstantial evidence that suggests that the accused was not only actively searching for child pornography over the internet, through his Google searches between March 15, 2012 and June 5, 2014, but that he had also been “accessing” child pornography between September 12, 2012, and October 21, 2014, is overwhelming. After all, why would the accused so actively pursue child pornography, through his internet searches, if he was not, in fact, interested in accessing or viewing child pornography. One would have thought that the very raison d’être for searching for child pornography, would be the viewing of the child pornography once it was found. There would seem to be little point in searching for something to be viewed, if one was not going to view it once it was located.

45The accused clearly had an abiding interest in child pornography, and had managed to amass, over time, a significant collection of child pornography images and videos on his various computer devices. I am driven to conclude that he did this for a reason, namely, because he enjoys accessing child pornography. If he did not take a perverse pleasure in viewing child pornography, he would not have searched for it in the first place, and most certainly would not have downloaded a significant collection of child pornography over time onto his various computer devices.

46The reality that the accused, in fact, accessed child pornography is, however, more than just a common sense conclusion driven by logic and human experience. It is also established by the evidence. As I have indicated, the police investigation in this case revealed not only the images and video recordings of child pornography that were in plain sight, but also revealed that there were also similar images and video recordings that were not in plain sight. Of course, if the accused were accessing such child pornography over the internet, through the web browser of his computer, his cached files evidencing such internet access would be captured amongst the files that were not in plain sight. That is exactly what the police discovered. As I have already indicated, many of the images of child pornography that were not in plain sight on the one terabyte hard drive were, in fact, cached images, evidencing the fact that they were accessed through the computer web browser. Of course, as Fish J. stated in R. v. Morelli, at para. 14, “[s]imply viewing images online constitutes the separate offence of accessing child pornography.”

47In summary, considering the significant collection of child pornography images and videos found on the computer devices exclusively possessed and controlled by the accused, the fact that many such images and videos were not found in plain sight, but rather were cached internet images, and the sheer diligence, over time, with which the accused searched for such images and videos of child pornography over the internet, the only reasonable conclusion that can be draw, in all of the circumstances of this case, is that the accused was accessing child pornography, as alleged in count two of the indictment. See R. v. Griffin, at paras. 33-34.

c. Possession of Child Pornography – The Lumfile Downloads (Count One)

48I am not satisfied beyond a reasonable doubt, however, that between September 12 and October 20, 2012, the accused was in possession of child pornography originating from the lumfile downloads, as alleged in count one of the indictment. While it certainly seems likely that the accused was in possession of this child pornography during this earlier five-week time period, I am simply not satisfied that the Crown has established this particular offence beyond a reasonable doubt. Accordingly, the accused is found not guilty of this offence.

49The three “rar” files that the police were able to access through an available password were all downloaded to the accused’s IP address within a period of just 31 seconds just after 10:00 in the morning on September 30, 2012. Moreover, these files clearly contained videos and images of child pornography. Approximately three weeks later, on October 20, 2012, the accused purchased a 30-day lumfile.com website membership for $12.99. While there is no evidence that the accused had purchased any earlier lumfile.com membership, the evidence revealed that a person could download files from this website (at a slower speed) without ever purchasing any membership. In any event, it is hard to understand why the accused would purchase such a membership if he: (1) was not aware that he had earlier downloaded child pornography files from the website; or (2) if he was not interested in downloading more child pornography files from the website.

50Nevertheless, as I have already noted, not a single one of these downloaded lumfile “rar” files were found on any of the computer devices that the police seized from the accused’s apartment, even though the police carefully searched all of the accused’s computer devices for these particular files. If any of these child pornography files had, in fact, been downloaded as alleged, then it seems that they were subsequently deleted by the accused, and quickly deleted in sufficient time to permit the deleted files to be overwritten by the computer device, so that they could not even be detected by police examination of the unallocated space on the computer hard drives after the computer devices were seized by the police on October 21, 2014. The complete absence of any of these child pornography files on any of the computer devices owned and/or possessed by the accused causes me to have at least a reasonable doubt as to whether the accused was in possession of any of these child pornography files back in the fall of 2012.

51I have reached this conclusion even though it appears that, at an earlier point in time, the accused may have accessed or downloaded one of the lumfile child pornography files.

52Within the “rar” lumfile download on September 30, 2012, there was a file entitled “scno906.rar.” Within that file were a number of folders and, when the file was unzipped or decompressed, one of the files discovered within was uniquely named as follows:

“vzrosluy_djadja_s_malenkimi_devo4kami.3gp”

53This one particular file contained a compilation of video still images depicting an adult male, with an erect penis, subjecting a young girl, perhaps four years old, to an act of fellatio. Accordingly, this file clearly contained images of child pornography.

54This file was not found on any of the accused’s computer devices that were seized by the police. However, according to the “Internet Explorer Main History,” which was uncovered by the police with the assistance of the software program, Internet Evidence Finder, on the one terabyte hard drive from the computer tower, a user of the computer may have earlier accessed or downloaded this same child pornography file on January 14, 2012. The unique name of this file was identical (to a point) to the name of the file in the “rar” lumfile that was downloaded on September 30, 2012. Due to the great similarity of this unique file name, it was likely the identical file. However, the name of the file that may have been earlier accessed or downloaded on January 14, 2012, ended differently, and had a different file path, being within a different file entitled “scn2712.” In its entirety, its file name was as follows:

“vzrosluy_djadja_s_malenkimi_devo4kami.3gp_thumbs_[2011.12.27_18.18.53]”

55The probability that these two files are identical, and both contain the same child pornography images, is not, however, sufficient to establish the alleged guilt of the accused with respect to the first count of the indictment. I am simply not satisfied beyond a reasonable doubt that, as alleged in the first count of the indictment, the accused was in possession of the downloaded lumfile child pornography files between September 12 and October 20, 2012.

V

Conclusion

56In the result, I find that the accused guilty of the offences of accessing child pornography and possession of child pornography, as alleged in counts two and three of the indictment respectively, but not guilty of the charge of possession of child pornography, as alleged in count one of the indictment.

Kenneth L. Campbell J.