CITATION: R. v. Erskine, 2017 ONSC 6782

COURT FILE NO.: CR-17-10000100AP

DATE: 20171116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SCOTT ERSKINE

Martin Sabat, for the Crown, Respondent

Mayleah Quenneville, for Scott Erskine, Appellant

HEARD: November 10, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] Mr. Erskine was convicted of possessing child pornography by Justice Brownstone of the Ontario Court of Justice. He appeals. As part of the appeal he applied for bail pending appeal. On November 10, 2017 I dismissed his application. I found that the appeal was frivolous. I indicated that I would provide fuller reasons in due course. These are my reasons.

BACKGROUND

[2] In 2016 the police learned that child pornography had been exchanged on a peer-to-peer file sharing service. They obtained an internet protocol address associated to 50 Thorncliffe Park Drive, Apartment 103. That apartment was shared by Mr. Erskine and his roommate (and former romantic partner) Leonardo Dattadeen. On April 26, 2017 the police executed a search warrant at Apartment 103. Mr. Dattadeen was arrested at the apartment. He was asleep in his bedroom. Mr. Erskine was at work when the warrant was executed. The police arrested him there later that day.

[3] The police seized two computers and two flash drives containing child pornography. They found the following:

• one image of child pornography on a computer owned by Mr. Erskine;

• 105 images of child pornography on a computer belonging to Mr. Dattadeen;

• One flash drive with 19 images of child pornography;

• One flash drive with 54 images of child pornography.

[4] The police found the two flash drives in a drawer in Mr. Erskine’s bedroom. Both memory sticks had personal documents belong to Mr. Erskine in addition to the child pornography.

TRIAL AND REASONS OF THE TRIAL JUDGE

[5] The police charged Mr. Erskine and Mr. Dattadeen with possession of child pornography. The defence conceded that the images were child pornography. The defence also conceded that Mr. Erskine had control of the flash drives.

[6] The only issue in the case was knowledge. Mr. Erskine testified. He admitted that he owned the flash drives. He said that he had made them available to colleagues back in 2011 when he was a teacher. He did not know how the images found their way onto the flash drives. He did not suggest Mr. Dattadeen put them there. His police statement was played. Mr. Erskine admitted to having looked at child pornography in 2011. He made other damaging admissions in his statement. Those admissions were very inculpatory.

[7] The trial judge, in his thorough reasons, noted that the only real issue before him was knowledge. He did not believe Mr. Erskine, especially with regard to the child pornography on the memory sticks. He gave several reasons for disbelieving him.

[8] The trial judge also noted that Mr. Erskine had access to Mr. Dattadeen’s computer. Much of the content on Mr. Dattadeen’s computer belonged to Mr. Erskine, such as Facebook and Skype accounts. The trial judge found, based on computer forensic analysis, that that both flash drives had been plugged into Mr. Dattadeen’s computer at some point. He noted that 18 of the child pornography images on one of the flash drives were also found on Mr. Dattadeen’s computer. That lent credence to the notion that Mr. Erskine had downloaded child pornography using Mr. Dattadeen’s computer.

[9] Ultimately, the trial judge convicted Mr. Erskine of possession of child pornography only in relation to the images on the flash drives. He had a reasonable doubt regarding the images on Mr. Dattadeen’s computer and the one image on Mr. Erskine’s computer. He also acquitted Mr. Dattadeen.

ISSUE AND ANALYSIS

[10] There was only one real issue on the application for bail pending appeal: was the appeal frivolous?

[11] Ms. Quenneville, for Mr. Erskine, argued that the appeal was not frivolous for three reasons:

• the trial judge failed to address the third branch of R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742;

• the trial judge failed to consider key pieces of evidence that might have grounded reasonable doubt thus failing to provide sufficient reasons;

• the trial judge failed to consider whether guilt was the only logical conclusion.

[12] I respectfully disagree. Although a bail pending appeal application is not an argument of the appeal, in my view none of these arguments could succeed at a full appeal.

[13] Section 816(1) of the Criminal Code governs release pending appeal in summary conviction matters. The section does not set out the test to be applied by an appeal judge. That is different from indictable appeals. That test is set out in s. 679(3). Section 816(1) simply sets out the types of releases available to an offender. It is, however, almost universally accepted that the criteria governing indictable appeals should apply. For example, see: R. v. Ururyar, 2016 ONSC 5056 at para. 39.

[14] Pursuant to s. 679(3) of the Criminal Code an appellant must establish, on a balance of probabilities, three things in order to obtain release:

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

[15] The Supreme Court recently canvassed bail pending appeal in R. v. Oland, 2017 SCC 17. That appeal was primarily concerned with the public interest. Moldaver J. for the Court did, however, comment on the “not frivolous” requirement. He noted at para. 20 that the “not frivolous” test is a very low bar.

[16] Watt J.A. in the Ontario Court of Appeal considered the standard for “not frivolous” in R. v. Manasseri, 2013 ONCA 647 at para. 38:

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

[17] I turn now to the three arguments raised by the Appellant.

(a) The W.D. Argument

[18] Ms. Qunneville argues that the trial judge erred by not specifically mentioning the third ground of W.D. The “third branch” argument comes from W.D. itself, where Cory J., for the Supreme Court, stated at para. 28:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[19] An experienced and well regarded criminal lawyer, Craig Bottomley, filed an affidavit in support of the appeal, opining that the appeal was not frivolous. Such affidavits are not uncommon in bail pending appeal applications. The Criminal Proceedings Rules do not require them – they also do not prohibit them. The Crown did not contest the admissibility of the affidavit, or of the lawyer’s expertise. Such affidavits may be required because transcripts are rarely ready at the time of the bail application. Indeed, transcripts may not be completed before the offender has finished serving his or her sentence – thus rendering the appeal moot. In such cases an affidavit from counsel may be helpful, since counsel may be able to bring matters to the attention of the appeal judge where those matters are not apparent from the reasons for judgment or the record that is available. Mr. Bottomley opined that the trial judge did not take the step of determining whether “on the accepted evidence as a whole, the Applicant was guilty beyond a reasonable doubt.”

[20] Respectfully, however, I must disagree. As Abella J. stated for the majority stated in R. v. C.L.Y., 2008 SCC 2, 2008 S.C.C. 2 at para. 6:

… the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused…

[21] This was a one-issue case. There was no question that Mr. Erskine had control of the flash drives. They were his. They were in a drawer beside his bed, in his bedroom. There were personal documents belonging to Mr. Erskine on the flash drives. Mr. Erskine denied knowledge. If Mr. Erskine was not believed, conviction was a virtual certainty. It is trite that the reasons of the trial judge must be read as a whole. The trial judge adverted to the burden of proof, to the standard to be applied, and to the evidence. Moreover, he was careful to find Mr. Erskine guilty only in relation to the images on the flash drives. He had a reasonable doubt about the other images, including the one pornographic image on Mr. Erskine’s own computer.

[22] Much litigation has arisen around the credibility aspect of W.D., in particular the alleged failure to use the words of W.D. or set out all the elements of the test in detail. Cory J. himself commented in R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 that the W.D. procedure was not meant to be followed "word for word as some magic incantation".

[23] Accused persons often argue on appeal that a trial judge may have articulated reasons for not believing the accused’s evidence but then does not go on to analyze why the same evidence does not leave him or her with a reasonable doubt. That argument is based on a misconception of W.D.: R. v. Thomas, 2012 ONSC 6653. Although this case, unlike Thomas, did not involve competing stories, the real question was not whether the trial judge specifically adverted to W.D. The real question was whether the trial judge failed to articulate why he was not left in a state of reasonable doubt on the whole of the evidence. The key issue here is “whether the correct burden and standard of proof were applied, not what words were used in applying them”: C.L.Y., supra, at para. 7. The trial judge very clearly did so, and this argument does not raise a viable ground of appeal.

(b) The “Key Evidence” Argument

[24] Ms. Quenneville argues that the trial judge failed to mention several pieces of evidence that were capable of grounding a reasonable doubt. Ms. Quenneville makes this point in the context of a Sheppard argument: R. v. Sheppard, 2002 SCC 26.

[25] This argument is also not a viable ground of appeal. A trial judge is not required to mention every piece of evidence: R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 135, [1995] O.J. No. 639 (C.A.) at paras. 27-31.

[26] The trial judge did consider either explicitly or implicitly, most of the evidence the defence points to. Mr. Erskine’s quarrel is not with whether the trial judge considered these pieces of evidence. His simply disagrees with the inferences drawn by the trial judge. Furthermore, the trial judge’s decision to acquit in relation to the computers but not the flash drives shows that he was clearly alive to the exculpatory evidence available to Mr. Erskine – and that he applied that evidence. An appeal court would not intervene based on this point.

[27] For the same reason the Sheppard argument does not raise a viable ground of appeal. The trial judge clearly articulated that control was not an issue, but that knowledge was. It cannot be stressed enough that the critical point about the flash drives was that they were in Mr. Erskine’s drawer, they had Mr. Erskine’s documents on them, and they were in contact with a computer. That computer was used to download child pornography. There is no argument from the defence that the trial judge shifted the burden of proof – he did not – but as a practical, evidentiary matter the circumstances required Mr. Erskine to show he didn’t know the child porn was on the flash drives. The only thing that really mattered in the case was whether or not the trial judge believed him or found his evidence raised a reasonable doubt. The trial judge explained, in detail, why he did not believe Mr. Erskine. This, too, is not a viable ground of appeal.

(c) The Circumstantial Case Argument

[28] Ms. Quenneville also argues that the trial judge erred by failing to consider whether guilt was the only rational explanation: R. v. Villaroman, 2016 SCC 33. She argues that since this was a circumstantial case, the trial judge was required to consider other possibilities in his analysis. He failed to do so. That, she argues, constituted an error.

[29] Again, I respectfully disagree. This was a circumstantial case only in the sense that nobody actually saw Mr. Erskine actually look at the images on the flash drives. It was as close to a direct evidence case as a circumstantial case can get where the issue is knowledge. Mr. Bottomley, in his affidavit, notes that the trial judge failed to consider evidence pointing to Mr. Dattadeen as the person downloading the child pornography. I cannot agree that this argument is viable. Mr. Erskine, in his evidence, said that he was not accusing Mr. Dattadeen of putting the child pornography images on the flash drives. It would have been unusual, to say the least, for Mr. Erskine’s lawyer to then argue to the trial judge that Mr. Dattadeen should have been found guilty of knowledge and possession in relation to the flash drives. It would have required him to argue that the trial judge should believe his client except on that one point.

[30] Realistically, Mr. Dattadeen was the only other possible suspect. The trial judge specifically considered whether he knowingly had knowledge and possession of the images on the flash drives. The trial judge examined the evidence on that point in some detail. For example, he noted that there were photographs of Mr. Dattadeen on the flash drives (Mr. Erskine and Mr. Datadeen were in a relationship at some point). Those photographs were not selfies.

[31] In any event, the trial judge acquitted Mr. Dattadeen. He specifically found that “it was Mr. Erskine and not Mr. Dattadeen who accessed Mr. Dattaden’s computer to transfer material to the USB drives.” Realistically, the only other possible verdict in relation to the flash drives that would open to the trial judge was a finding of joint possession. That would not have helped Mr. Erskine, obviously. That also shows that the trial judge understood that he could only convict if guilt were the only logical explanation.

[32] This final ground of appeal is not viable.

DISPOSITION

[33] As noted, the application for bail pending appeal was dismissed.

R.F. Goldstein J.

Released: November 16, 2017