Court File and Parties

COURT FILE NO.: Crim(P) 859/18 DATE: 2019 02 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN M. Morris, for the Crown

- and -

TOMASZ RYTEL K. Szopinski, for Tomasz Rytel

REASONS FOR JUDGMENT

D.E. HARRIS J.

[1] The accused Tomasz Rytel is charged with one count of accessing child pornography and one count of possession of child pornography, the offence dates being the 13 days leading up to March 5, 2015.

[2] Peel Regional police obtained a warrant for the accused’s residence to search and seize digital devices to investigate the alleged offences. The warrant was executed on the morning of September 14, 2016. A laptop was seized in the basement of the home. After analysis, a treasure trove of what is admitted to be child pornography was found. There were many thousands of still pictures as well as a large number of videos.

[3] The accused was interviewed the same day by Constable McDonald. Voluntariness was contested at trial. I ruled that the Crown had proved voluntariness. On the trial at large, the only substantive issue raised was whether the Crown had proven that the laptop in question was possessed by the accused. An issue also arose with respect to the time period particularized in the indictment.

VOLUNTARINESS

[4] The Crown must prove voluntariness beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38. The defence complained that not all officers present during the execution of the warrant were called by the Crown on the voir dire. For this reason, voluntariness had not been proved. The other argument was that the accused had requested his medication in the police interview and there was no indication that he ever received it.

[5] With respect to the first point, years ago, as a matter of course, all police officers having even incidental contact with the accused or being anywhere in his orbit, were called as witnesses by the Crown. A more considered and thoughtful approach is now the norm. If there is strong evidence demonstrating voluntariness and no contrary evidence, not calling all the officers who had contact with the accused will not often raise a problem. Speculation does not serve to demonstrate that a statement is involuntary. Unless there is some concern arising from the record, adducing evidence from a parade of peripheral police officers is not necessary: see R. v. Genaille, 1997 MBCA 103, [1997] M.J. No. 341 (C.A.), R. v. Socobasin (1996), 1996 NSCA 201, 110 C.C.C. (3d) 535 (N.S.C.A.); R. v. S.S., [1996] O.J. No. 4564 (Gen. Div.), R. v. Settee, [1975] 3 W.W.R. 177, 22 C.C.C. (2d) 193, 29 C.R.N.S. 104 (Sask. C.A.); R. v. Kacherowski, 1977 ALTASCAD 285, [1978] 1 W.W.R. 209, 7 A.R. 284, 37 C.C.C. (2d) 257 (C.A.); R. v. Wert (1979), 12 C.R. (3d) 254 (B.C.C.A.). Of course, calling the officer or officers who took the statement or were party to the accused’s utterances will almost invariably be necessary.

[6] In this instance, several police officers testified on the voir dire. There were 8 officers in total in the home during execution of the search warrant. The accused’s interactions with the police were accounted for in large part. No officer testified to anything they did or saw that would throw voluntariness into question. It is only speculation which would put voluntariness into doubt. There is no evidence or a lack of evidence which could have this effect.

[7] At the outset of his interview, the accused was asked if he was ok and then, in a disconnected sort of way, answered no. The interview than continued and there was no distress or discomfiture mentioned again. With respect to the medication, there was some mention that the accused asked for his medication from the basement and an officer went down and brought it up. It was not clear whether the accused ended up taking any of the medications.

[8] On this record, I concluded that the Crown has proved voluntariness beyond a reasonable doubt. The statement was admissible.

POSSESSION

[9] With respect to the issue of possession of the laptop, when the police entered the home, the accused’s mother and another woman were upstairs in the home. Officer Artkin testified that he was the first police officer who went down to the basement. There was a makeshift curtain hanging from the ceiling. The accused was observed sitting on the other side of the curtain, eating. The accused was taken upstairs by the police.

[10] Constable McDonald went downstairs after the accused was brought up. He found a laptop computer near the curtain divider. He logged on to it and began to look into its hard drive.

[11] During the course of the execution of the search warrant, the accused who was dressed in sleeping clothes, asked that officers go downstairs to get clothing and medication for him. They did so.

[12] For the Crown, Mr. Morris argues that the circumstances apparent at the time of the execution of the warrant prove that the computer was the accused’s. The laptop was in the basement. The accused was found down in the basement and his clothing and medication were there. There was a bed in the basement and so it could be reasonably inferred that he lived down there. However, the evidence makes it clear that his mother lived in the home and probably another woman as well.

[13] The pictures of the home the police took showed that the first floor was immaculate but the basement was in disarray with clothing and other possessions scattered every which way. The Crown contended that this helped to prove that the accused lived in the basement and owned, possessed and controlled the laptop computer.

[14] While amusing, this argument is thoroughly unpersuasive. Perhaps Crown counsel’s contention is founded on the premise that men are poor housekeepers but, in contrast, woman are much more meticulous. Therefore, the messy part of the house must be where the male accused lived. I cannot take this argument seriously. Even to include this as one minute piece of circumstantial evidence towards proof beyond a reasonable doubt would be highly questionable.

[15] If this was all the Crown had, an acquittal would likely be necessary. But the accused’s statement to Constable McDonald adds to the picture. When Constable McDonald suggested that the laptop was his, the accused weakly denied it. He then said that he gave it to someone else and they gave it back to him. He then said that he did not usually use the laptop. The accused finally claimed that he had been “spoofed” and that his computer had been hacked.

[16] In this little game of cat and mouse between the officer and the accused, the accused floated several exculpatory trial balloons one after another. None had any plausibility to them. The cumulative result of the accused’s attempts was that he admitted the laptop was his but disowned the activity on it.

[17] Based on the circumstances apparent upon the execution of the search warrant and the accused’s interview with Constable McDonald, I am convinced beyond a reasonable doubt that the accused had exclusive control and possession of the laptop. The images and videos on the laptop were his.

[18] There was no evidence of any kind that the computer had been hacked. I reject the suggestion that it was and that anyone other than the accused’s had control of the laptop. I am not left with a reasonable doubt on this issue.

THE TIME PERIOD IN THE INDICTMENT

[19] The indictment particularized the two weeks before March 5, 2015 as the offence period but the accused was not actually found in possession of the laptop until execution of the search warrant on September 14, 2016, about a year and a half later. Crown counsel attempted to rescue the situation by eliciting from a police officer that some of the illicit files had dates of March 2015 or before and were within the scope of the indictment. However, the officer frankly admitted that the file dates were not necessarily reliable as to when the accused came into possession of the files.

[20] The fact is, by inadvertence, the prosecution particularized the wrong offence period. It was suggested by the Crown that the March 2015 time frame likely came from the information to obtain the search warrant and was based on evidence received from international agencies which viewed the accused’s computer on dark web child pornography websites. Of course, the explanation does not matter. The Crown cannot prove that the accused was in possession or accessed child pornography within the time period in the indictment.

[21] Is the divergence between the indictment and the evidence fatal to the Crown’s case? The leading judgment in the area is R. v. B. (G.), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58. Justice Wilson held that Section 601(4.1)(a) of the Criminal Code (as it now is) is a complete answer to a time variance like that in this case. It provides that a difference between the indictment and the evidence is

… not material with respect to the time when the offence is alleged to have been committed…

[22] There is one important caveat. Justice Wilson said at paragraph 42,

42 … it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence, unless the time of the offence is critical and the accused may be misled by the variance, and therefore prejudiced in his or her defence. It is also clear from Dossi, supra, and other authorities that the date of the offence need not be proven in order for a conviction to result, unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances. Time may be an essential element of the offence in some circumstances ...

Also see R. v. D. (S.), 2011 SCC 14.

[23] Is time an essential element of the possession and accessing charges? Justice Wilson in B.(G.) looks at several cases in which time was held to be an essential element or was critical to a defence. In a theft case, the accused had received permission to take the goods at one point but it was later withdrawn. There was nothing to determine whether the taking was before or after permission was given. Time was held essential. Justice Wilson mentioned another similar case in which authorization to fly a plane was in issue. Time was held to be essential because on one side of the time line authorization was given, while on the other side, it was not. Another circumstance in which time has been found to be essential is when an alibi is tendered (see paras. 43-51).

[24] In the case at hand, there is no prejudice to the accused from the discrepancy between the indictment and the evidence. There is no question of permission or authorization and there was no alibi raised. Time was not essential.

[25] There are two possession of child pornography cases with a similar problem in which it was held that time was not essential: R. v. Carswell, 2009 ONCJ 297, [2009] O.J. No. 2624, at paras. 456-469, R. v. Friers, 2009 ONCJ 140, at para. 77. I agree with the decisions in these two cases.

[26] In this instance, the accused was in possession and accessed child pornography in the time frame of the execution of the search warrant. He was not proved to be in possession at the time specified in the indictment. But there is no prejudice. The accused knew exactly what he was charged with. Under the Criminal Code, the time of the offence was legally immaterial.

[27] For these reasons, there will be findings of guilt on each of the two charges.

D.E. HARRIS J. DATE: February 7, 2019