Court File and Parties

COURT FILE NO.: CNJ 9559 DATE: 2020-08-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – S.E. Applicant

Counsel: Laura Doherty, for the Crown Stephen Gehl, for the Applicant

HEARD: July 20, 21 & 22, 2020

By Court Order, there is a ban on publishing any information which could identify a victim, person under 18, or the accused, in any document or transmitted in any way, except through the use of their initials. Failure to comply is punishable by summary conviction.

Corrected decision: The corrections were made on April 26, 2022. The names of persons who could be identified as either a victim or person under 18 years of age have been corrected to only the use of their initials or relationship status.

Corrected decision: The corrections were made on July 29, 2021. The name of the Applicant was incorrectly identified as “E…” in the citation on page 1 and the back sheet. Corrections have now been made to change that name from “E…” to “S.E.” In addition, the Applicant was incorrectly identified as “S… E…” in the title of proceedings on page 1 and on the back sheet. Corrections have now been made to change that identification from “S… E…” to “S.E.”

The publication ban which read: “SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE PRETRIAL APPLICATIONS BE SEALED AND THAT THE PUBLIC (INCLUDING THE MEDIA) SHALL NOT HAVE ACCESS TO THEM” has now been amended to read: “By Court Order, there is a ban on publishing any information which could identify a victim, person under 18, or the accused, in any document or transmitted in any way except through the use of their initials. Failure to comply is punishable by summary conviction.”

reasons for Support Person and Alternate Suspect pre-trial applications

The Honourable Justice James W. Sloan

[1] This judgment deals with the following Pre-Trial Applications:

(a) The Crown’s application for a support person for C.C.; and (b) The Accused’s alternate suspect application.

[2] In support of their application to allow C.C. to testify in the presence of a support person, the Crown has filed among other materials, the affidavit of Detective Tyler Shipp and a factum. In response to this application, the accused has filed a factum. Both parties rely on case law.

[3] In support of the accused’s alternate suspect application, the accused has filed among other materials, the affidavits of S.H. and Christie Lynn Kirby and a factum. In response to this application the Crown has filed among other materials, transcripts of evidence of the accused and a factum. Both parties rely on case law.

Support Person

[4] C.C. will be testifying via video link from British Columbia. It is the Crown’s position that C.C. is a complainant who has material evidence. Their request is for Pam Fox of the Chilliwack RCMP victim services to be present in the room with C.C., while she gives her testimony. Ms. Fox has been supporting C.C. over the past years in relation to this matter and was in the room while she was testifying during the preliminary hearing.

[5] After discussions in court at the commencement of this hearing, the parties consented to an order that the complainant, C.C., be allowed to testify in the presence of a support person on the conditions that:

(a) the support person shall be Pam Fox; and (b) there shall be no communication between C.C. and Ms. Fox while they are in the room where the testimony is to be given.

Synopsis - Alternate Suspect

[6] It is the accused’s position that the computer found in a bedroom of the applicant’s residence with images of child pornography on it, belongs to the applicant’s daughter, and came from the residence of J.W., who is the daughter’s mother.

[7] The accused alleges there is a long history of bad blood and acrimony between J.W. and himself, who are the biological parents of the daughter. In addition to motive, J.W. had opportunity and has a prior criminal record. The accused submits that J.W. created and controlled the Internet username “criza” on “iMGSRC.ru” where some of the pornography was found and therefore he ought to be allowed to raise J.W. as an alternate suspect.

[8] The Crown submits there is an insufficient connection between J.W. and the offences and therefore no air of reality to the proposed alternate witness defence. The court must consider whether the evidence is reasonably capable of supporting the inferences urged upon it by the accused.

[9] The Crown submits that the material in Ms. Kirby’s and S.H.’s affidavits is extremely weak, both with respect to animus or motive and opportunity.

S.H.

[10] S.H. has been in a common-law relationship with the accused for approximately 5 years.

[11] For a period of time in August and September 2016, S.H. (while in the common-law relationship with the accused) and the daughter lived with J.W., at her residence on Valleyview Crescent in Kitchener, to accommodate the daughter going to school.

[12] At that residence, the daughter had an iCan computer tower in her room. In April 2017 the computer was transferred from J.W.’s home to the accused’s home. At this point in time the daughter was 8 years old.

[13] The computer was apparently owned by J.W.’s then boyfriend, Mr. Tyrone, who said the daughter could have the computer. S.H. and the accused went to J.W.’s house and picked it up.

[14] Once the computer was in their home it was the accused who hooked it up, with S.H. stating that she is computer illiterate. The home was equipped with Wi-Fi.

[15] Although the accused apparently had legal custody of the daughter, it appears that he and J.W. had a good relationship when it came to sharing time with their daughter. It does not appear that there was a hard and fast access regime and S.H. testified that J.W. saw the daughter numerous times a week and on weekends. Apparently, there was no overnight access.

[16] Although S.H. testified to keeping access records commencing in October 2016, the ones she relayed to the court were sketchy at best. On the evidence before the court, there did not appear to be any reason why such records would be necessary. No reason was given for why such records would be kept.

[17] In addition to taking the daughter out for access, J.W. would see and entertain the daughter in her bedroom at the accused’s residence.

[18] S.H., who lived with J.W. for the months of August and September in 2016, testified that she never saw J.W. access the iCan computer during that period of time or at any time.

[19] There is no evidence of any animosity between J.W. and S.H. during the time they lived together or at any other time.

[20] S.H. also testified that she never saw the accused use the iCan computer. There is no evidence as to whether or not there was another computer in the home.

Kristy-Lynn Kirby

[21] Ms. Kirby is a legal assistant in the law firm of the accused’s lawyer. Although she swore an affidavit, she has no personal knowledge of the events and appears to have sworn her affidavit to introduce numerous documents.

Lori Strobel

[22] Ms. Strobel is a Sergeant at the Vanier Centre for Women. She gave an interpretation of the two pages reproduced at Volume 30, Tab 5. It is two pages from an Offender Tracking and Information System which is updated daily and used by Prison’s Canada to keep track of inmates.

[23] The two pages relate to two time periods, one between January 18, 2017 and May 22, 2017 and the other between October 30, 2015 and August 18, 2016. There are apparently 43 pages in the entire record.

[24] Between February 24, 2017 and May 22, 2017, it appears that J.W. was serving a 60 day intermittent sentence on weekends from Friday night to Monday morning.

[25] Ms. Strobel was unable to say for sure when J.W. would have been in custody from looking at the document.

[26] The record shows that J.W. spent her time in prison between Milton – Vanier, Kitchener Centre and Elgin Middlesex.

Officer Matthew Loschmann

[27] Loschmann has been with the cyber crime unit of the Waterloo Regional Police since April 2015.

[28] He has done some forensic analysis with respect to a compressed computer file zo_lekker.zip.

[29] The iCan computer has three hard drives of which only two were functional. One of the hard drives contained software such as operating system and the other a Maxtor hard drive which contained the subject zip file.

[30] While he can state that the files were uncompressed, he is unable to say whether or not they were reviewed. He stated that the files were extracted and that to do so the user would have to tell the computer where to store the file which would only take a few seconds.

[31] The subject zip file contains 331 files all of which were images. He stated the file was created in 2015 and placed on the Maxtor hard drive in 2016. Part of the pathname for the file containing the name was “\Pictures\Virus”.

[32] Part of his forensic report is contained in volume 32. The file was created in 2015 somewhere, but he does not know where.

[33] He testified that the file was created (landed) on the Maxtor hard drive in 2016 and the record was changed on March 22, 2017 when the file was moved from one location on the Maxtor hard drive to another location on the same drive.

[34] The information on page 3 of volume 32 shows that the Gateway laptop was used to access files on the iCan computer, but not the other way around. That is, the Gateway laptop computer had access to the Maxtor hard drive.

[35] He briefly described how this would work over Wi-Fi in a person’s residence, through a modem or router which would allow multiple devices within the range of the Wi-Fi, for people having the correct password to access information from other devices.

[36] It was his opinion that the Gateway computer was used to uncompress the zip file. He came to this conclusion as set out on page 3 of his report because, when he searched for the path “\Pictures\Virus” on the iCan computer he got zero hits, but when he did the same search on the Gateway laptop, he got 80 hits.

[37] In addition, the information could not have been sent from the Gateway computer because “sharing” was not enabled. Therefore, the information had to go from the iCan computer to the Gateway laptop. He stated, on page 14 of his report, which is not part of volume 32, that it shows the Gateway laptop accessed the iCan computer numerous times.

[38] On March 22, 2017 the contents of the zip file were moved from one place on the Maxtor hard drive to another place. The zip file was not discovered on any other devices.

[39] From searches that he did, he testified that the path “\Pictures\Viruses”, which is a path not a file, is not contained in any file on the iCan computer. Therefore, he concludes that the Gateway laptop accessed the zip file on the iCan computer. In fact, there were 80 hits as stated previously.

[40] To put it another way, a person can access and manipulate a file without putting it on their computer. Both computers would record what computer was accessing the file, and in this case the records from both computers show that only the Gateway computer was accessing the zip file.

[41] In addition, he testified that the iCan computer did not access the Russian website “ru” but that the Gateway computer accessed the Russian website multiple times.

Submissions of the Accused

[42] The accused submits that:

(a) “for the introduction of alternate suspect evidence, the judge is to accept the evidence presented is true for the purposes of determining a ruling at the application. The application judge does so when determining threshold admissibility of the evidence and not to make an ultimate decision about the evidence. The ultimate decision would be the task of the jury if the application is permitted” (R. v. Borbely, 2013 ONSC 14 at para 14); and

(b) “The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence and not amount to speculation.” (R. v. Grandinette, 2005 SCC 5 at para. 47)

[43] He submits that J.W. had possession of the iCan computer and possible access to the Gateway laptop. He concedes that at this point in time the court does not have any evidence with respect to whether J.W. ever had possession of the Gateway laptop.

[44] He submits the charges range in time from January 2011 to July 2017 and that there is no evidence of when the iCan was accessed.

[45] In addition, he states that Loschmann must be qualified as an expert in computer forensics and that so far, he has not been. Therefore, all of the above are live issues.

[46] He reminded the court that the iCan computer was at J.W.’s residence until April 2017. In addition, he submits an essential element of the charges involve possession of the offending material.

[47] He concedes that the alternate suspect defence would only be arguable/available for some of the counts in the indictment.

[48] He further submits that all of the cases relied upon by the Crown were jury cases and therefore the function of judge as a gatekeeper in this trial, which is a judge alone trial, is less compelling.

[49] The accused submits that there was animosity between himself and J.W. and that J.W. had the opportunity to place the offending material upon the devices, because she had access to them and possession of the iCan computer over a prolonged period of time. The animosity was J.W.’s motive.

Submissions of the Crown

[50] Ms. Kirby did not provide viva voce evidence on this application but only swore an affidavit. The affidavit is very unhelpful to the court as it lacks any specificity of either motive or opportunity with respect to J.W.

[51] There is no evidence J.W. ever touched the iCan computer even during the two months that S.H. lived with her.

[52] There is no evidence about how long the iCan computer owned by Tyrone was in J.W.’s home/possession.

[53] There is no evidence that J.W. had the pictures referred to in the indictment.

[54] There is no evidence that the zip file was on the iCan computer before it left J.W.’s residence and no evidence that the Maxtor hard drive was in the iCan computer while in her possession.

[55] There is no evidence that J.W. was ever in possession of the Maxtor hard drive and that is a drive Loschmann said, acted as a storage device for the subject files.

[56] The only one to testify on the accused’s behalf was S.H. with respect to whether or not J.W. had access to any of the devices and whether or not there was animosity between J.W. and the accused. Although the iCan computer was in J.W.’s residence, S.H. never saw J.W. access the computer at any time and never saw J.W. access the Gateway laptop at any time.

[57] In fact, there is no evidence about whether or not J.W. is computer illiterate in any way, shape or form. Apparently S.H. has no computer skills whatsoever.

[58] The sharing of information between the two computers only went in one direction and that was from the iCan computer to the Gateway laptop, and the Maxtor hard drive was essentially being used as storage for the Gateway laptop.

[59] S.H., other than one bald statement that there was some animosity between J.W. and the accused, was unable to give any dates for any particulars other than that it arose because the accused had custody of the daughter. In fact, it appears that J.W. and the accused had a very liberal sharing of their time with the daughter, even to the point that the accused often played with the daughter in her room at the accused’s home.

[60] Some of the dates on the indictment are historical. It is unbelievable for the accused to suggest that J.W. started as far back as 2011 to trap the accused with the offending material.

[61] In addition, why would she post her own compromising photographs on the accused’s computer?

[62] Also, the accused would have the court believe that this grand plan came together without J.W. knowing and without her assistance, that is, that she did not tip off the Waterloo regional police, since the information about child pornography came to the police via the Australian police, who passed the information on to the OPP, who in turn passed it on to the Waterloo Regional Police force.

[63] Lastly, there is an onus on the accused to convince the court that there is an air of reality to the defence.

[64] The Crown relies on numerous cases including, R. v. Tomlinson, 2014 ONCA 158 paras. 72 and 75, R. v. Grandinetti, 2005 SCC 5 at paras. 47 and 48, R. v. Tehrankari, 2012 ONCA 718 at para. 37, R. v. Fontaine, 2004 SCC 27 para. 70, R. v. Cinous, 2002 SCC 29 at paras. 47, 48, 49, 53 and 54, R. v. Grant, 2015 SCC 9 at paras. 44 and 45 and R. v. McMillan, 1975 CarswellOnt 7 at paras 23 and 24.

[65] In the Tomlinson case in 2014 the Ontario Court of Appeal stated:

72 Second, evidence marshalled in support of a third-party suspect defence, as with other evidence adduced in a criminal trial, must be compliant with the rules of admissibility. Said in a somewhat different way, the evidence proposed for reception must be relevant, material and admissible. The proponent does not get a free ride through the admissibility ticket upon mere announcement of “third-party suspect”.

75 Fifth, we often use the term “opportunity” or “evidence of opportunity” to describe the nature of the connection between the third-party and the conduct charged that is essential to provide an air of reality to the third-party suspect defence. Absent this evidence, circumstantial evidence of an alleged third party’s disposition and motive for example, would be excluded as immaterial: Grandinette, at para. 48. (Look at this one closely)

[66] In the 2015 case of Grandinette, the Supreme Court of Canada at paragraphs 47 and 48 stated:

47 The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence and not amount to speculation.

48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence … If there is an insufficient connection, the defence of third-party involvement will lack the requisite air of reality: R. v. Cinous …

[67] In the 2012 case of Tehrankari, the Ontario Court of Appeal at paragraph 37 stated:

37 The evidence may be direct or circumstantial. Inferences based on the evidence may be drawn, but speculation is not permitted. The evidentiary burden on the accused is discharged when the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence.

[68] In the 2004 case of Fontaine, the Supreme Court of Canada stated at paragraph 70:

70 Any prior confusion regarding the “air of reality” requirement has been dissipated by Cinous. With respect to all defences, the evidential burden is discharged if there is some evidence upon which a properly instructed jury acting reasonably could acquit on the basis of that offense: see Cinous, supra, especially at paras. 2, 47, 49, 60, 62, 68 and 74. The “air of reality” test adds nothing to this well-established standard and should not be used to raise the governing evidential threshold or to introduce a persuasive requirement.

[69] In the 2002 case of Cinous, the Supreme Court of Canada stated at paragraphs 47, 48, 49, 53, 55 & 83:

47 The key issue is whether there is an air of reality to the defence of self defence in this case. It is our view that there is no air of reality to the defence: a properly instructed jury acting reasonably could not acquit the accused on the ground of self defence, even if it accepted his testimonial evidence as true. Since the defence should never have been put to the jury, any errors made in the charge to the jury relating to that offence are irrelevant. The curative proviso of s. 686(1)(b)(iii) should be applied and the conviction upheld.

48 This Court has considered the air of reality test on numerous occasions. The core elements of the test, as well as its nature and purpose, have by now been clearly and authoritatively set out. .... Nevertheless, a controversy has arisen in this case concerning the extent of the trial judge’s discretion to keep from a jury defences that are fanciful or far-fetched. More narrowly, the contentious issue is the correct evidential standard to be applied in determining whether there is an air of reality to the defence of self-defence on the facts of this case.

49 In our view, the controversy can be resolved on the basis of existing authority, which we consider to be decisive. The correct approach to the air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. … This long-standing formulation of the threshold question for putting defences to the jury accords with the nature and purpose of the air of reality test. We consider that there is nothing to be gained by altering the current state of the law, in which a single clearly staged test applies to all defences. … There is no need to invent a new test to modify the current test, or to apply different tests to different classes of cases.

53 In applying the air of reality test, the trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. … The evidential foundation can be indicated by the evidence emanating from the examination in chief or cross examination of the accused, of defence witnesses or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on record. There is no requirement that the evidence be adduced by the accused.

54 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. … The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. … Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

55 Whether or not there is an air of reality to the defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury the defence that has an air of reality. … The statements that “there is an air of reality” to a defence and that the defence “lacks an air of reality” express a legal conclusion about the presence or absence of an evidential foundation for a defence.

83 There is nothing inherently objectionable about using the “no evidence”, “some evidence” or “any evidence” terminology when describing the evidential standard applicable to the air of reality test, provided that these terms are understood as elliptical references to the full question, which is whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base acquittal if it believes the evidence to be true. The corollary at this point is that it is an error of law to use the terms “some evidence”, “no evidence” and “any evidence” to refer to a question other than the full question stated above. … This approach was affirmed for directed verdicts of acquittal and committal for trial following a preliminary inquiry in R. v. Arcuri … There is no authority for a threshold that could be satisfied by pointing to evidence that is incapable of reasonably supporting the inferences necessary to acquit an accused. Before putting a defence to a jury, it is the trial judge’s duty to ask not just whether there is evidence in any general sense, but whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied upon is reasonably capable of supporting the instances required for the defence to succeed.

Analysis

[70] I start my analysis with the quote from paragraph 47 of the Grandinette case, “The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence and not amount to speculation.”

[71] Many, if not all of the cases cited to me were from jury trials. In those cases, before the judge makes his/her final decision, he/she has heard all of the evidence. That is not the case here.

Evidence in Favour of Allowing the Third-Party Defence to Proceed

[72] The evidence contained in the Kirby affidavit is neutral. She has no personal knowledge whatsoever of any of the events germane to this prosecution.

[73] S.H. gave some evidence that is in favour of allowing the third-party defence to proceed. That evidence, although brief, was as follows:

(a) The iCan computer, which contained child pornography on its Maxtor hard drive, although owned by J.W.’s boyfriend, Tyrone, was present in the residence J.W. lived in before it was transferred to the accused’s home. (b) There was some animosity between J.W. and the accused, likely because the accused had custody of their daughter.

Evidence or Lack of Evidence Against Allowing the Third-Party Defence to Proceed

[74] There is no evidence that J.W. ever accessed the iCan computer. Not even during the two month period when S.H. resided with J.W. in her home.

[75] There is no evidence that J.W. had any computer skills whatsoever, or whether she would have been able to access and manipulate information on any computer, including the iCan computer.

[76] There was no sharing from the Gateway computer to the iCan computer, which was owned by the accused. In short, the iCan computer, and in particular, the Maxtor hard drive was being used as storage for the Gateway computer.

[77] There is no evidence J.W. ever had any access to the Gateway laptop. Although S.H. testified that J.W. may have had access to the Gateway laptop on the occasions that she visited at the accused residence to see the daughter, her evidence on these visits was that either the accused or herself was always present in the home.

[78] She did not provide any information whatsoever to back up her skeletal pronouncement, that there was animosity between J.W. and the accused. There was no evidence along the lines about what J.W. said or did, how many times she said or did it or what the immediate background of the pronouncements or acts were. Did she say or do something directly to the accused or did she say something only to S.H. etc.?

[79] If any of the above actions took place, there is no evidence about what the reaction of the accused was and what followed, if anything.

[80] S.H. painted a picture of parenting/access arrangements that have been worked out between the accused and J.W. in a very mature and child-centred manner. The access to J.W. was liberal and J.W. was welcomed into the accused’s home to visit or pick up the daughter.

[81] There was no evidence of any acrimonious court proceedings over any matrimonial issue. Certainly nothing like the necessity of having a neutral pickup and drop-off spot for access. In addition, nothing was said about things like restraining orders.

[82] In short, other than S.H.’s one bald statement about some animosity, the remainder of her evidence is of a calm mature relationship between ex-spouses.

[83] The defence theory that J.W.’s plan was to get the accused in trouble by placing child pornography on a computer might make more sense if J.W., or some anonymous person, had tipped off the local police. This of course is not the case, since it was an Australian police force who alerted Canadian authorities about the child pornography in the Ontario/Waterloo region.

[84] Only the Gateway laptop accessed the subject Russian website.

Judgment

[85] Essentially, the defence wants the court to infer that J.W. had the motive and opportunity to place the child pornography on the iCan computer.

[86] There was at least some opportunity for J.W. to put the child photography on the iCan computer because it was at her residence. This would be the same opportunity that any other person who entered the residence would have. This could include any number of friends, and of course, Thorpe and S.H..

[87] Notwithstanding most of the cases cited to me were from jury trials, as set out at paragraph 53 of the Cinous case, the judge is to consider the totality of the “evidence” in addition to assuming “the evidence relied upon by the accused to be true”.

[88] As set out in the case law, inferences based on the evidence may be drawn but speculation is not permitted.

[89] At the end of the day I must ask myself “whether the evidence discloses a real issue to be decided by the jury and not how the jury should ultimately decide the issue”. (Cinous para.54.)

[90] Notwithstanding S.H.’s testimony of opportunity and motive, based on the totality of the evidence as set out in my analysis under the heading “Evidence or Lack of Evidence, Against Allowing the Third-Party Defence to Proceed”, I find the inferences urged on me by the accused, to not be reasonable and that they essentially amount to speculation.

[91] I therefore dismiss the accused’s third-party application.

Justice J.W. Sloan

Released: August 5, 2020

COURT FILE NO.: CNJ 9559 DATE: 2020-08-05

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – S.E. Applicant

reasons for Support Person and Alternate SUSPECT PRE-TRIAL APPLICATIONS

J.W. Sloan J.

Released: August 05, 2020