Court File and Parties
COURT FILE NO.: 18-A10829 DATE: 2020/06/29 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: HER MAJESTY THE QUEEN AND: R.S.D.
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Matthew Humphreys, for the Crown Lorne Goldstein, for the Accused
HEARD: October 2 – 4, October 7, November 13 & 14, 2019
JUDGMENT AND REASONS
C. MACLEOD, RSJ (ORALLY):
Scheduling and COVID-19
[1] The trial of this matter concluded in November 2019 when the matter was adjourned until assignment court in December 2019 to set a date for judgment. The matter was subsequently adjourned to two further dates and a date for judgment was then set for March 25, 2020.
[2] Unfortunately, due to the COVID-19 health restrictions, by order of the Chief Justice, all in-court appearances were suspended and all criminal matters were adjourned on March 17th, 2020. As a result, this matter was not dealt with on March 25th and would not have been dealt with until July when all adjourned criminal matters are to be spoken to.
[3] Counsel subsequently agreed to proceed with judgment via videoconference (Zoom). The accused agreed to this manner of proceeding and was able to be present in the virtual hearing under the supervision of his surety as per his bail conditions. Consequently, the matter was brought forward for judgment.
The Nature of the Charges
[4] The accused was charged with accessing, possessing and distributing child pornography contrary to s. 163.1 (4.1), 163.1 (4), and 163.1 (3) of the Criminal Code. As I will discuss momentarily, what are in issue are electronic files containing videos and images which were downloaded from the internet, stored on computer drives and shared on the internet.
[5] The evidence readily establishes that the computer owned by the accused did these things at various points in time and it is conceded some of the files in question met the definition of “child pornography”.
[6] The question which determines whether the accused is guilty as charged is whether the Crown can establish the necessary knowledge component – the mens rea – for each of these offences.
The Elements of the Offences
[7] Child pornography is criminalized because it represents sexual abuse of young and vulnerable children. Much of the material available on the internet involves actual sexual abuse of actual children and in some cases, it is extreme and graphic. In order to suppress demand for such images and to condemn it in the strongest terms, Canada has made accessing, possessing or distributing such material a criminal offence. Law enforcement agencies in Canada co-operate internationally in an effort to expose, suppress and prosecute both those who produce such videos and images and those who access or distribute them.
[8] It is appropriate to begin by describing these offences and the elements of proof required to establish guilt. There are separate offences largely because it is possible to access pornography without possessing it, possible to possess it without viewing it, and possible to distribute it without either viewing it or accessing it. The distinction was described in more depth by the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253.
[9] The offence of accessing child pornography pursuant to s. 163.1 (4.1) of the Code is made out if the Crown can establish that the accused “knowingly causes child pornography to be viewed, or transmitted, to himself or herself”. In the case at bar, there is no question that the accused downloaded files containing child pornography. The question is whether he knew what those files contained or, as he himself testified, whether the files were inadvertently included in a torrent of otherwise perfectly legal pornography.
[10] Even if the files were inadvertently downloaded which might be a defence to knowingly causing the child pornography to be transmitted to himself, there is then the question of whether the accused knowingly viewed the files stored on his computer. If he knew what the files contained and then viewed the images or the videos that would also meet the requirements of s. 163.1 (4.1).
[11] The offence of possessing child pornography pursuant to s. 163.1 (4) of the Code is made out if the Crown can prove the accused was in possession of files containing images of child pornography. Possession is defined by s. 4 (3) of the Code as anything that the accused has “in his personal possession or knowingly” … “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”. There are two components to legal possession. The first is control, power or authority over the item and the second is knowledge. See R. v. Mohamad, 182 CCC (3d) 97 (Ont. C.A.).
[12] In this case, there is no doubt that files containing child pornography were at one time stored on media in or attached to the computer belonging to the accused. The accused had control over those files. There is no doubt that he downloaded them, saved them and subsequently deleted them. The question is whether the Crown can prove the knowledge component. It is necessary to prove that the accused knew those files had been saved and what they contained. Fleeting innocent possession will not be enough. If the accused did not intend to download the files, did not know what they contained and deleted them immediately when he became aware of the contents, he may escape conviction. See R. v. Chalk, 2007 ONCA 815 @ para. 25.
[13] The offence of distributing child pornography pursuant to s. 163.1 (2) of the Code includes transmitting, making available or distributing child pornography. In this case, the Crown conceded that inadvertent distribution by a computer system without the knowledge of the accused would fall short. The Crown also conceded that there is insufficient evidence to prove such knowledge or intention and for that reason, I acquitted the accused on this charge at the conclusion of trial.
[14] This is consistent with the result in R. v. Branco, 2019 ONSC 1026 which involved very similar facts. In that case the court held that a conviction would be appropriate if the Crown could prove the accused “intended to share child pornography, knew he was sharing child pornography, or was wilfully blind to the fact that he was sharing child pornography”. In that case, as in this, however, the evidence when filtered through the analysis demanded by R. v. W. (D.), [1991] 1 SCR 742 fell short. There is room for reasonable doubt as to whether or not the accused knew that his computer was sharing files including child pornography.
[15] The central questions are therefore whether or not the accused intended to download child pornography or knew he had done so, whether he viewed or otherwise accessed the files and whether he knowingly retained possession of the files. In criminal law terms, the question is more precisely whether the Crown can prove such knowledge beyond a reasonable doubt.
Background & Forensic Evidence
[16] The accused is a prodigious user of the internet. He utilizes various types of applications to locate and download games, game modifications (“mods”), videos and images. He has a particular interest in pornography. One of the services he uses is uTorrent.
[17] uTorrent is free software that is widely used for locating and sharing content on the internet. It is designed to facilitate downloading of large volumes of electronic information by locating multiple sources of the target information and accessing pieces of that information from more than one computer or storage device. This has numerous advantages compared to uploading and downloading an entire file from a single source but for the end user, the main attraction is being able to locate and download large numbers of files they may be interested in. Widely used for sharing of video games, video game data files, movies, music and images, uTorrent can also be also used for sharing pornographic material including illegal material such as child pornography.
[18] As the evidence at trial disclosed, uTorrent operates by indexing metadata about the location of files so as to facilitate peer to peer file sharing. It is not itself a repository of files. Using the software, the user accesses a web site which hosts “trackers” for the type of file the user is interested in. The actual files are located on “peer” computers attached to the internet and sharing those files. The torrent software locates the files on the peer computers and then facilitates downloading of the files without putting undue strain on the individual computers which host those files.
[19] File sharing is accomplished by assembling the various file sharing hard drives into a “swarm” and by drawing pieces of the files to be shared from each member of the swarm. The file is then assembled on the end user’s computer. Once a file is completely downloaded in this manner, it becomes a “seed” which is to say a file which can be located by a tracker and is available to contribute pieces of data when one of the files is sought by another torrent user.
[20] When downloading a torrent, the user’s computer is enabled to grab portions of files from wherever they are located on other computers and to assemble them on the user’s computer. uTorrent also creates a shared folder on the user’s computer so that as soon as the files in a torrent are downloaded, the host computer also begins sharing seeds. These files then show up in the uTorrent user interface marked as “seeding”.
[21] While a sophisticated user can modify some of the default settings in the uTorrent software, and would understand the information displayed by the interface, much of this activity happens in the background and may be invisible to the user. In fact, it is not necessary to understand precisely how uTorrent works in order to make use of the service. uTorrent can be used for sharing any kind of file. The accused used uTorrent to find and download pornography and included in the latter were some videos and images that contained child pornography. The question is whether this was conscious or not and what the accused did with the files when he became aware of their existence.
[22] In the case at bar, the information in question takes the form of videos and images. Because of the manner in which computers and the internet operate, there are different ways to access and share such information. For example, a user might view a video located on a web site by streaming it without downloading and saving the file on his or her own computer. Alternatively, the information could be downloaded and saved on a local computer and then viewed later. Finally, the data could be downloaded and saved without ever being viewed and could be forwarded and shared.
The Facts and the Evidence
[23] The evidence establishes that between 10:58 p.m. on September 30th, 2017 and 5:38 a.m. on October 1st, 2017, using a police version of Torrent software, the Ottawa Police Service became aware that a computer using the IP address of 70.26.9.94 was distributing files on the internet believed to contain child pornography. Much like anti-virus software scans for known virus files, the police have software that scours the internet looking for files contained in an international database of files suspected of containing child pornography.
[24] The suspect files are identified by their unique “hashtag values”. Once files have been located, the software identifies the location and downloads a copy of the files for review by a police officer. In this case the files downloaded from the IP address 70.26.9.94 were verified as containing images and videos that met the definition of child pornography. There is now an admission that the files were downloaded from the IP address assigned to the accused’ computer at the time and date in question and an admission that the files included files meeting the definition.
[25] On this basis, the conclusion is inescapable that child pornography was present on R.S.D.’ computer and was being shared on the internet on the night of September 30th and October 1st, 2017.
[26] The police were subsequently able to obtain access to files of the internet service provider (ISP) and ultimately to determine the municipal address where the computer that had been assigned the IP address on the relevant date was located. The IP address was tracked to the apartment where R.S.D. lives. All of this apparently took time.
[27] On May 9th, 2018 armed with a search warrant, the Ottawa Police Service (“OPS”) tactical unit breached the door of R.S.D.’ apartment and seized a number of hard drives and USB sticks. There was no child pornography accessible on the storage media at the time it was seized but using forensic software it was possible to recover deleted videos and images. A number of recovered images and videos contained pornography and some of those were child pornography.
[28] There is no doubt at all that there had been child pornography on one of the hard drives and the USB drive, but it had all been deleted by the time the warrant was exercised.
[29] During the search, the police also retrieved information from the active memory of the computer (RAM). Using software devised for the purpose, they displayed and captured information still held in memory which shows files the user had interacted with during the current session; that is since the computer was last powered on. Many of the file names were suggestive of child pornography. At least two of those file names match the names of files that were recovered and have been verified as child pornography.
[30] In all of the circumstances, I am satisfied that it is a reasonable inference that R.S.D. was the user of the computer and he or the computer had some interaction with these computer files prior to the search taking place.
[31] Based on the above, the accused had the actus reus for each of the offences of possession and distribution of computer files containing videos and images meeting the definition of child pornography. The critical question is whether he also accessed those files and viewed them or whether knowing of their contents retained them, manipulated them or cached them. Given the facts of this case, proving knowledge of the contents of the files and proving that the accused accessed those files are intertwined issues.
Count 2 – Distributing Child Pornography
[32] As mentioned earlier, the Crown conceded that the evidence did not support the mens rea necessary for a conviction for distribution and I acquitted the accused on that particular charge (Count 2). There is no denying that the computer owned by the accused was “seeding” or sharing child pornography when it was originally detected by the police, but this does not show that R.S.D. understood the meaning of “seeding” or intended to distribute those particular files.
[33] It was his evidence that he did not read the licencing agreement when he downloaded the software and did not understand that “seeding” meant “sharing”. He testified that he had only a rudimentary idea about how the uTorrent software worked and he did not know that his computer was sharing files. His evidence on this point could not be contradicted and it is sufficient under the circumstances to raise a reasonable doubt.
Counts 1 & 3 – Possessing and Accessing Child Pornography
[34] The accused also gave evidence about his use of the software. He acknowledged that he was intentionally seeking out and downloading pornography, but he denied that he knowingly downloaded child pornography. He also testified that he practices what is often referred to as “catch and release”. That is, he would download vast numbers of files he believed might be of interest and then he would sample it, viewing some of the files to see if they were of interest or suited his tastes. Typically, he would then delete many of the files without viewing them. He testified that there would not have been enough time in his lifetime to view every one of the pornographic videos he downloaded. He acknowledged that he had viewed vast numbers of them and had been a steady consumer of pornography since his teens.
[35] It was his evidence that any child pornography contained in torrents that he downloaded was entirely inadvertent. He also testified that on two occasions he discovered that one of the files he had downloaded was child pornography and that both times that occurred, he deleted his entire collection of pornography. He testified that he is not interested in child pornography, knew that his girlfriend and others would consider it repulsive and disgusting and also knew that it was illegal. He did not want child pornography on his computer.
[36] As a first step, I must consider whether I accept this evidence or at least whether it is sufficiently credible to leave me with a reasonable doubt. It is evidence that is at least partially consistent with the forensic evidence. For example, forensic examination of the computer demonstrates that the accused had interacted with some of the suspect files but could not show the purpose of that interaction or for how long it lasted. Ultimately, however, I do not find the evidence of the accused to be credible. I do not believe him when he claims that his possession of these files was unwitting or that he did not access the files by viewing at least some of the videos and images.
[37] The fundamental question, even if I reject the evidence of the accused, is whether or not the Crown has proven its case beyond a reasonable doubt. As discussed earlier, this is a question of proving knowledge and intention. A conviction is appropriate only if it is proven that R.S.D. knowingly stored child pornography on his computer or a storage device and accessed some of those files.
[38] The following facts point strongly to interaction with the child pornography files and to knowledge of their contents:
a. There was a “CP” subfolder on the external drive and in that folder there had been child pornography files. It is improbable that uTorrent would automatically create a sub-folder named “CP” and store child pornography in that fashion. b. The screenshot taken from the live memory shows interaction with files whose names are indicative of child pornography and at least two of those files have been shown to actually be child pornography. c. The “link files”, which are short cuts automatically created by the windows operating system when computer files are accessed by the user, show that certain child pornography files were accessed at least briefly.
[39] None of these items of proof are conclusive taken in isolation. Constable Taing, for example, was able to explain how “link files” worked and performed an experiment on his computer. Link files are short cuts created by the computer operating system when a user accesses a file. These files often appear in a “recent” folder on the computer and assist the user to retrieve a file that has previously been utilized. The link files however do not establish who viewed the file and for how long. It is conceivable that certain computer operations might create a link file even if the user does not view the contents. Conversely, a knowledgeable user could delete link files or clear the contents of a “recent” cache. Nevertheless, the existence of link files pointing to files later identified as child pornography, while not conclusive, is consistent with the computer user having accessed those files.
[40] The “CP” subfolder has the hallmarks of user created folder while the folder in which the subfolder was originally located was an alphanumeric folder typical of folders created by the computer operating system. There was no conclusive evidence on this point. It is possible for a user to create an alphanumeric folder, but it is unlikely the operating system or the software would create folder named “CP” and save child pornography into that folder. Although the forensic evidence could not establish who created the “CP” folder and for what purpose, it is a reasonable inference that the folder was created by R.S.D. and the child pornography placed in that folder involved an intentional act.
[41] Taken together, the conclusion that the accused accessed and manipulated some of the files is inescapable and would support a conviction. When these are combined with the statement the accused gave to the police, I am left in no doubt at all that R.S.D. viewed at least some of these files and knew what was stored on his computer.
[42] In his statement to the police, which I ruled was a voluntary statement to a person in authority, R.S.D. can be seen explaining to Detective Carr that he viewed the files not because he himself found them interesting but to protect his child. He stated that he needed to see what was involved in that kind of evil so that he could recognize it and perhaps recognize the locations or the circumstances leading to the creation of that type of image or video. At p. 59 of the transcript, for example, when he stated to Detective Carr that he “delete almost immediately afterwards” and he wanted to “know … the pattern” and “see the pattern”, “to find that pattern and … be able to prevent it” and similar responses at pp 68 – 71 and 72 -74, he is clearly responding to questions about child pornography videos. At page 94 & 95 of the transcript he is specifically asked about child pornography and he responds that “it is mostly just catch and delete”. He knew that he was being charged with possession of child pornography and he knew it was a serious situation. The language is veiled but the context is clear.
[43] In his testimony in court, R.S.D. testified that he was not talking about child pornography but about pornography in general. I do not accept that evidence. Although it is true that he does not confess to saving or viewing child pornography in those precise words, R.S.D.’ answers only make sense in that context. His answers that he was only viewing it to protect his child do not make sense in the context of pornography in general. The accused readily admitted to being a prodigious user of regular pornography. In fact, he and his girlfriend both testified that he frequently wakes in the night and watches pornography on the screen beside the bed. He also uses pornography to research sexual practices he believes he and his partner might like to engage in. His response to Detective Carr at p. 96 of the transcript that his girlfriend never watches the videos because he “wouldn’t put that on her” is obviously not referring to pornography in general.
[44] I conclude that the evidence in this case demonstrates that R.S.D. did store child pornography files on his computer or storage devices, did view some of those files and was aware of what they contained.
[45] He may well have deleted illegal files after he viewed them as he testified. It is possible he only sampled the files and did not view them all. It is certainly clear that he had deleted all of the files just before the warrant was exercised. These are not defences in the circumstances of this case.
[46] I conclude that the Crown has proven the necessary mental element for the crime of possession and the crime of accessing child pornography. A finding of guilt is appropriate on Counts 1 & 3.
Next Steps
[47] I asked for submissions on the application of the Kienapple principle. In Kienapple v. R., [1975] 1 SCR 729, the Supreme Court affirmed the principle that, generally speaking, multiple convictions arising out of the same sequence of events should be avoided. This does not apply if the offences are different offences but may apply if they are overlapping or arise from the very same act or series of acts.
[48] Neither counsel was prepared to make such submissions at this time and asked that they be allowed to consider their positions. This issue can be addressed at the next appearance or at the time of sentencing.
[49] Neither counsel asked for a pre-sentence report or other steps prior to sentencing and it is not clear what the impact of COVID-19 has been on the availability of such services. This issue should also be addressed on the next court date.
[50] This matter is scheduled to be spoken to virtually at assignment court on July 6th, 2020, but I urge counsel to confer on the next steps and to seek agreement on a date for the matter to be spoken to or for me to hear sentencing submissions. If they agree on a date or date, they may contact the trial coordinator and ask to be taken off the July 6th list.