COURT FILE NO.: CR-19-0599-00AP (Guelph) DATE: 2020 08 11

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN T. Meehan, for the Respondent Respondent

• and -

GABRIEL MELLOR Appellant L. Board, for the Appellant

HEARD: June 9, 2020 via Zoom

REASONS FOR JUDGMENT [On appeal from the judgment of Justice G.F. Hearn dated May 14, 2019]

Dennison J.

INTRODUCTION

[1] The appellant admitted the essential elements of the offences of possessing and accessing child pornography. The sole issue at trial was whether the appellant had a legitimate educational purpose in possessing and accessing the child pornography pursuant to s. 163.1(6) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] Section 163.1(6) of the Criminal Code provides a defence to possessing or accessing child pornography where the act has a “legitimate purpose related to the administration of justice or to science, medicine, education or art” and where the act does not “pose an undue risk of harm to persons under the age of eighteen years.” At trial, the appellant argued that he was conducting research so that he could create a training program to train volunteers of youth-serving organizations. He wanted to train volunteers to recognize signs of sexual abuse among victims, prevent perpetrators from joining these organizations, and to locate perpetrators already in these organizations. He also argued that he took precautionary measures to ensure that there was no undue risk of harm to persons under the age of eighteen years.

[3] After the appellant testified, the trial judge permitted the Crown to call reply evidence. The appellant then called surrebuttal evidence. Ultimately, the trial judge found the appellant guilty. The trial judge rejected the appellant’s evidence and was satisfied beyond a reasonable doubt that the appellant did not have a legitimate educational purpose for possessing and accessing the child pornography.

[4] The appellant raises three issues on this appeal:

1. Did the trial judge err by allowing the Crown to call reply evidence thereby splitting the Crown’s case and prejudicing the appellant?

2. Did the trial judge improperly consider the merit of the appellant’s educational pursuit in assessing whether it was legitimate?

3. Did the trial judge misapprehend the evidence regarding the risk of undue harm to persons under the age of eighteen years, and in doing so, unreasonably determined that the risk of harm was “undue”?

[5] By agreement of the parties, this appeal was heard via Zoom conference call. This procedure was implemented in response to the closure of the Superior Court of Justice courthouses due to COVID-19.

[6] After the appeal concluded, I contacted counsel in writing and asked for further written submissions about whether the decision of R. v. R.D., 2014 ONCA 302 had any impact on this appeal. I received the parties’ further written submissions and considered those submissions in deciding the appeal.

[7] For the reasons outlined below, the appeal is dismissed.

SUMMARY OF FACTS

[8] The appellant was arraigned on charges of possessing and distributing child pornography. An agreed statement of facts was filed with the court in which the appellant conceded the elements of the offences.

[9] The agreed statement of facts indicated that in September 2017, Guelph Police conducted an investigation into the sharing of child pornography on a file-sharing network. Police identified a user of a computer that was storing child pornography files. Police determined that Rogers was the Internet provider associated with the computer. A production order was obtained. Police determined that the subscriber was Susan Mellor, the appellant’s mother. The appellant resided at the same address as his mother.

[10] On October 11, 2017, police executed a search warrant at the residence. Police seized a laptop computer and an external storage device. The appellant agreed that he was the sole owner and user of the devices. A cursory review of the laptop disclosed images that met the definition of child pornography in the Criminal Code.

PC Pettapiece’s Evidence

[11] PC Pettapiece gave evidence as part of the Crown’s case. He briefly explained his involvement in the investigation. He explained how he downloaded 34 child pornography images from the appellant’s computer from a peer-to-peer file-sharing network. PC Pettapiece also testified about the websites the appellant’s search terms were connected to, what torrent files were and how they worked.

[12] Over 70 child pornography videos and over 3,500 child pornography photos were discovered on the laptop and storage device.

The Appellant’s Evidence

[13] The appellant testified that he downloaded the child pornography for a legitimate educational purpose.

[14] He testified that he was involved with several youth-serving organizations, including the Red Cross, Scouts Canada, and Family and Children Services. He believed that there was a systemic lack of training in these organizations to screen volunteers who may be potential predators and to identify victims of sexual abuse.

[15] The appellant believed he was qualified to conduct this research. He had a philosophy degree with a specialty in ethics. He had been in the army reserve for 15 years until 2009. He took a ten-week counter-intelligence course that included training about deception, detection, and the study of body language and facial expressions. He was also a safeguard trainer with Family and Child Services. Since 2009, he also trained others in first aid.

[16] Prior to commencing his research, the appellant testified that he reviewed the provisions of the Criminal Code. He believed that he could conduct the research because it was for educational purposes and because he took steps to ensure that his research would not cause undue harm to persons under the age of eighteen years. He did not seek legal advice to confirm that his research would be legal under the Criminal Code.

[17] The appellant did not seek any guidance or tell anyone about his research. He did not seek any academic direction or oversight prior to conducting his research. He did not tell the organizations he volunteered for about his research. He testified that he did not tell anyone because of the stigma attached and because he would be expelled from the Scouts and would no longer be able to do the research. He recognized that this type of research had never been done before but he “believed he had a moral obligation to protect the children in his care.”

[18] The appellant testified about the research he conducted. He testified that he conducted research from 2016 to 2017, but the majority of the research was done in 2017. He filed a bibliography of the materials he said he reviewed. He also filed a collection of handwritten notes that he stated he made over a period of time. He testified that he collected this information from the Guelph and Waterloo University Libraries. He testified that the literature identified gaps in the research because sexual predators are typically interviewed after having been convicted, at a time when their responses may be unreliable.

[19] The appellant testified that an important part of his research was to be able to detect and interpret emotions on faces. He believed that if he reviewed child pornography, he would have a better understanding about those who perpetrated sexual offences and its effect on children. Viewing child pornography would assist in developing the training manual and assist in teaching volunteers how to detect sexual perpetrators and identify victims of abuse.

[20] The appellant also accessed pedophile material on the dark net, which he felt enabled him to “gain access to the primary data that he needed without having to interact with anyone that would compromise the security that [he] needed to put in place to prevent re-victimization of anyone.”

[21] He acknowledged that he did not actually prepare any training materials but stated that he did not do so because he wanted to make sure that the foundation of that training was accurate. The appellant admitted that he had no notes with respect to his review of the child pornography nor did he speak to anyone about his research.

[22] The appellant outlined the steps he took when conducting his research to ensure that he did not create an undue risk of harm to persons under the age of eighteen years.

[23] The appellant testified that he set out guidelines for how he would conduct his research. He did not engage in any conversations with people he encountered from the pedophile community. He adjusted the settings on his torrent system to ensure that the “upload” portion was turned off, meaning that he could download materials, but they could not be uploaded and re-share from his computer. The appellant testified that he was at a loss as to how the police were able to obtain access to a number of images on the computer that led to his arrest. He stated that he did not deliberately share any of the material with anyone.

[24] The appellant also stated that he made copies of the material that were stored locally. It was kept on a single device that only he had access to. The computer was in his bedroom that was in a separate area of the house. His bedroom was only accessible through a locked door.

The Crown’s Reply Evidence

[25] After the appellant testified, the trial judge asked the Crown if it intended to call any reply evidence. The Crown recalled PC Pettapiece. He gave further evidence with respect to how the material was stored and named on the computer in response to the appellant’s evidence that he had taken steps to safely store the material so it could not be viewed or downloaded by others. A directory of the various files with a thumbnail cache was made an exhibit.

[26] PC Pettapiece testified that there was nothing in the search of the materials that indicated the child pornography was for educational purposes. Some of the names of the files were known to the officer from past investigations and were known child pornography files. The officer also testified that there were adult pornography files intermingled with the child pornography.

[27] PC Pettapiece described the layout of the residence. He testified that the laptop and device were found in what appeared to be the appellant’s bedroom. He stated that there was a room next door that appeared to be for the appellant’s son when he visited. The appellant resided with his mother and believed two foster children also lived there. He did not believe the door to the bedroom had a lock and had no difficulty entering the room when executing the search warrant.

[28] The officer indicated that while the computer was password-protected, the storage device was not. The device could be inserted into any computer to view the files. Both devices contained child pornography files.

The Appellant’s Surrebuttal Evidence

[29] The appellant’s counsel sought to recall the appellant on the issue of bedroom security. The appellant explained that he had two rooms in the basement that were separated from the rest of the house by a lockable door. He kept the doors to his rooms locked. He agreed that the doors were not locked when he answered the door for the police but noted that there were no foster children present. He also explained that their house had policies in place for the foster children. They were not permitted to go into other people’s rooms. He also described where he stored the computer and storage device in his room.

TRIAL JUDGE’S REASONS

[30] The trial judge provided written reasons finding the appellant guilty on May 14, 2019. He reviewed the evidence in detail and the position of the parties.

[31] The trial judge reviewed s. 163.1(6) of the Criminal Code and the jurisprudence interpreting this provision including R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326. In Katigbak, the Supreme Court of Canada held that the court must first evaluate whether it has a reasonable doubt that the accused, from a subjective standpoint, had a genuine, good faith basis for possessing child pornography: at para. 58. In addition, the appellant’s purpose must be objectively related to an educational purpose: Katigbak, at para. 60. The court must consider whether, “based on all of the circumstances, a reasonable person would conclude that (1) there is an objective connection between the accused’s actions and his or her purpose, and (2) there is an objective relationship between his or her purpose and one of the protected activities” (i.e. education): Katigbak, at para. 60.

[32] In this case, the trial judge adopted the reasoning in R. v. Jeffrey, [2012] S.J. No. 3 (Sask. P.C.), at para. 31 where the court stated the analysis required when considering a proposed defence under s. 163.1(6):

The Katigbak analysis of a proposed defence under s. 163.1(6) therefore proceeds as follows:

(i) has the accused raised a reasonable doubt that he or she had a genuine, good faith reason for dealing with the child pornography in question in the manner they did? This portion of the test will typically be a question of credibility;

(ii) is that reason one of the defensible grounds specified in subsection (6)? This is a question of law. In most cases the answer will be obvious, but there may be some circumstances in which a deeper analysis must be done;

(iii) are the accused’s actions objectively connected to his or her stated reason for dealing with the child pornography? The reasonableness of this connection may well also bear on the credibility of the accused’s claim in step (i), but it is again relevant at this stage; that is, the court could find in the accused’s favour in step (i) by finding a reasonable doubt, but still find against him or her at this stage by deciding that even though the accused may have considered that there was a valid connection between their actions and their stated purpose, there was in fact no objective connection between them.

(iv) if there is an objective connection between the accused’s actions and their stated purpose, is there an objective connection between that stated purpose and one of the protected activities in subsection (6)? That is, would a reasonable person identify the accused’s purported reason for dealing with child pornography as being one of the protected bases in subsection (6)? This question tests the reasonableness of the accused’s claim under step (ii). Again, that reasonableness may also bear on the credibility of the accused’s assertion regarding step (ii);

(v) if the answers to all of the above are in the accused’s favour, then the court must consider the risk the accused’s actions pose to persons under 18. Firstly, is that risk “significant”? I take this to mean that the risk of harm must at least be more than trivial or passing. Secondly, is that risk “objectively ascertainable”? The risk must be one that a reasonable person would perceive. The reference to “ascertainable” means that the risk does not have to be clear to the reasonable person based on commonly-available information; rather, “ascertainable” must refer to the ability of the parties to lead evidence as to the risk of harm, to inform the court such that it can make a fully-informed objective assessment of the risk of harm. In some cases, of course, evidence may not be required; in others, it may be of assistance to the court. It is important to note that, even if the accused raises a reasonable doubt up to the point of this step, if his or her activities fail this final test, the defence fails: if the accused’s actions pose an undue risk to children, then there is no defence available.

[33] The trial judge found that the appellant did not have a genuine, good faith reason for possessing and accessing the child pornography. In considering this issue, he applied the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742. The trial judge rejected the appellant’s evidence and found that it did not leave him with a reasonable doubt that he had a genuine, good faith reason for his actions. The trial judge found the appellant’s evidence to be “entirely unconvincing” and not credible.

[34] The trial judge also found that there was not an objective connection between the appellant’s stated purpose and the protected pursuit of education.

[35] In assessing the appellant’s credibility and in finding the appellant guilty, the trial judge considered a number of factors including:

1. The appellant never addressed why there was adult pornography intermingled with child pornography. The trial judge held that this would be consistent with a person viewing pornography for a non-educational purpose.

2. The trial judge did not understand how viewing the child pornography could benefit the appellant’s research. The appellant provided nothing aside from hope that educational material might be extracted from watching child pornography. The trial judge found that there was no reasonable connection between the two.

3. It was not believable to expect someone with limited or no experience to have the ability to produce a product for educational purposes that would be credible or useable.

4. The appellant lacked specifics as to how his education and background would assist him in his research. For example, there was no evidence of how the appellant used his experience in the counter-surveillance training program to assist him in his research.

5. While the appellant referenced concerns he had from his volunteer experiences at Scouts and at his child’s schools, these concerns did not relate to child predators. His evidence was unclear as to what occurred and what prompted him to look at this issue.

6. The appellant did not seek an opinion about the legality of conducting his research.

7. The appellant did not consult with academics or organizations that he wished to ultimately sell or provide his product to.

8. The appellant has no academic qualifications, no record for published research, or any publications aside from a first aid manual.

9. The appellant seemed to be very precise and thorough when conducting his research of written materials. In contrast, he had no notes, written or on his computer, of any observations that would be relevant to his research after having viewed hundreds of child pornography images and numerous videos. He also had no manuals or drafts of his training materials.

10. The appellant drew no conclusions as to what observations he made that would assist him in his educational pursuit despite having the material in his possession for an extended period of time.

[36] The trial judge also held that even if he found that the appellant had a genuine educational purpose for accessing or possessing the child pornography, he would find that in this particular case, there was an undue risk of harm to persons under the age of eighteen years. The trial judge held that “by possessing the child pornography on a file-sharing program he made it available to others who could access the shared file” as demonstrated by the fact that the Police uploaded child pornography from his computer at the start of the investigation.

[37] The trial judge also considered that the laptop was in the appellant’s bedroom, and although the laptop was password-protected, the storage device was not and could have been accessed by anyone.

ISSUE #1: DID THE TRIAL JUDGE ERR IN ALLOWING THE CROWN TO CALL REPLY EVIDENCE?

General Principles

[38] As a general rule, the Crown must introduce all of the evidence in its possession that it relies upon to prove the accused’s guilt in its case in-chief before the accused is required to decide whether to adduce evidence in response: R. v. K.T., 2013 ONCA 257, at para. 41; R. v. Krause, [1986] 2 S.C.R. 466, at pp. 473-474. The objective of this rule is to prevent the “unfair surprise, prejudice, and confusion that could result if the Crown were allowed to split its case”: K.T., at para. 42. The rule ensures trial fairness and respects the notion of a case to meet: K.T., at para. 41.

[39] This general rule is not an absolute bar to the introduction of reply evidence by the Crown. Reply evidence is permitted “when it is necessary to insure that […] each party will have had an equal opportunity to hear and respond to the full submissions of the other”: Krause, at p. 474. The Crown may therefore be permitted to call reply evidence where “the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated”: K.T., at para. 43. The Crown is also permitted to call reply evidence where “some matter that emerged during the Crown’s case has taken on added significance as a result of evidence adduced in the defence’s case”: K.T., at para. 43; see also Krause, at pp. 473-474; R. v. Quance (2000), 146 C.C.C. (3d) 153 (Ont. C.A.), at para. 21; R. v. Sanderson, 2017 ONCA 470, at paras. 39-41.

[40] The Crown is also entitled to introduce reply evidence where a specific defence is raised that is not in and of itself probative of guilt even if the Crown could have anticipated the position of the defence. As explained in R.D., at paras. 18-20:

Similarly, because the rule regarding order of proof is designed to prevent the Crown from splitting its case, it does not prevent the Crown from introducing evidence in reply to the defence case that is not in and of itself probative of guilt. Reply evidence can be adduced to refute a specific defence advanced by the accused: see e.g. W. (A.), supra, at p. 181; R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.), at p. 693; R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.), at p. 490. As Doherty J.A. recognized in W. (A.), at p. 181, the Crown is entitled to introduce this kind of reply evidence regardless of whether it could have anticipated the position of the defence:

I also reject the suggestion that because the Crown had some indication that the appellant would advance physical incapacity as a defence that the Crown was required to lead any evidence it had to counter that position as part of its case. That proposition is contrary to this court’s decisions in R. v. Campbell, supra, and R. v. Stevenson, supra, and would, in my view, if accepted, prolong and potentially confuse trials by requiring that the Crown lead evidence on matters which, in the end, may have virtually no significance in a particular case.

This court’s traditional approach, as applied in Quance, W. (A.), Campbell and Stevenson, is consistent with the objective of the order of proof. There is no question that the defence is entitled to have the Crown’s full case in order to mount its response. Case splitting is impermissible. Yet evidence that is not probative of the accused’s guilt is not part of the case that the Crown must establish. Put somewhat differently, an accused is not surprised by reply evidence that is directed solely at an issue put in play by the defence case. Reply evidence that is not in and of itself probative of guilt does not engage the fairness concerns addressed by the rules against case splitting.

Inherent in all the various formulations of the test for reply evidence is the significance of the case actually called by the defence. Whether or not the Crown is entitled to call reply evidence depends in large measure on the evidence adduced and arguments raised by the defence. The Crown’s entitlement to lead reply evidence turns in part on whether the defence has raised a new matter or defence, or tendered evidence that caused the Crown’s case to be viewed in a new or different light. In other words, only with the benefit of the defence evidence can the admissibility of reply evidence be assessed. [Emphasis added.]

Position of the Parties

[41] The appellant submits that the trial judge erred by permitting the Crown to call reply evidence. The Crown knew from the beginning of the case that the sole issue was whether the appellant had a legitimate educational purpose and whether his actions posed an undue risk of harm to persons under the age of eighteen years. The Crown should have reasonably anticipated that it would be required to call evidence about the layout of the house and what was located on the computer and storage device.

[42] The appellant submits that he suffered undue prejudice when the trial judge allowed the Crown to call reply evidence. It was the Crown’s onus to prove beyond a reasonable doubt that the appellant did not have a legitimate purpose for possessing and accessing the child pornography. The Crown knew there was a possibility that PC Pettapiece would be called to give reply evidence, yet he remained in the courtroom after he testified as part of the Crown’s case. PC Pettapiece was recalled and filled in the holes in the Crown’s case.

[43] In addition, the appellant submits that the trial judge further erred because he did not self-instruct himself that he should consider PC Pettapiece’s evidence with “great care” because the officer was present in the courtroom when the appellant testified.

[44] The appellant also submits that the opportunity for the appellant to provide surrebuttal evidence did not cure the prejudice. The appellant submits that his evidence was circumscribed in surrebuttal because he was limited to giving evidence about the layout and search of the house and his room. He submits that he was denied the opportunity to respond to the evidence about the adult pornography found on his computer nor was he cross-examined by the Crown on this point.

[45] The Crown submits that it had no idea what the appellant’s defence was aside from the generic statement that the appellant possessed and accessed the child pornography for educational purposes and that his actions did not create an undue risk of harm to persons under the age of eighteen years. This was not a case where the Crown had an out-of-court statement from the appellant or the Crown’s witnesses were cross-examined about the defence such that the Crown would have an indication of the details of the defence.

[46] The Crown submits that it was only after the appellant testified that the Crown was aware that the appellant’s educational purpose for downloading the child pornography was to conduct research to create a training manual to assist youth-serving organizations in screening volunteers and in identifying victims and perpetrators of child sexual abuse. It was only after the appellant testified that the Crown learned of the steps the appellant said he took to ensure that there was not an undue risk of harm to persons under the age of eighteen years.

[47] The Crown also submits that the appellant suffered no prejudice from the calling of the reply evidence. The officer’s evidence related to issues the appellant raised and much of the evidence related to the actual material that was found on the computer and storage device. In addition, the appellant was permitted to call surrebuttal evidence and was not limited in his evidence as the appellant submits. The Crown submits that the trial judge was trying to be fair given the unique manner that the trial unfolded in this case.

Analysis

[48] I am satisfied that the trial judge correctly admitted the reply evidence in this case for the following reasons.

[49] First, while the Crown was aware that the appellant was raising a defence pursuant to s. 163.1(6) of the Criminal Code, the Crown had no details as to what the educational purpose was or the basis for the appellant’s assertion that he ensured that his actions would not create an undue risk of harm to persons under the age of eighteen years.

[50] The appellant did not give any prior statements that might have suggested what the educational purpose was. Nothing contained in the agreed statement of facts appeared to relate to the defence. There was also nothing in the cross-examination of PC Pettapiece that suggested any details of the defence: Quance, at paras. 24, 26.

[51] The Crown is not required to speculate and try to guess the details of the educational purpose and the safeguards the appellant put in place to ensure there was no undue risk of harm to persons under the age of eighteen years. The first time the Crown heard the details of the defence was when the appellant testified. The appellant gave detailed evidence about his research and the steps he took to ensure that others could not access the files on the computer. The Crown could not have anticipated this evidence and therefore could not have anticipated what evidence it would need to call to respond to it.

[52] I do not find that the Crown conceded on appeal that it could have called the reply evidence in its case in-chief. Rather, the Crown agreed that in hindsight, the Crown could have guessed that some of PC Pettapiece’s evidence regarding the layout of the house and whether the devices were password-protected could be relevant to the issue of how the appellant acted to create an undue risk of harm. The Crown had no idea what other evidence might be relevant, such as the fact that there was adult pornography interspersed with the child pornography or the names of the files.

[53] I also do not find that the Crown was required to lead PC Pettapiece’s evidence about the layout of house and the computer in the Crown’s case in-chief. As noted in R. v. W.(A.) (1991), 3 O.R. (3d) 171 (C.A.), requiring the Crown to lead any evidence that it had to counter the defence is contrary to the Court of Appeal for Ontario’s decisions in R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.) and R. v. Stevenson, [1990] O.J. No. 1657 (C.A.). Requiring the Crown to lead all possible relevant evidence would prolong and potentially confuse the trier of fact because the evidence may or may not be relevant. In this case, with the benefit of hindsight, the relevance of the evidence was more apparent. At the time, the Crown had no idea what safeguards the appellant would testify that he put in place to ensure there was no undue risk of harm to persons under the age of eighteen years.

[54] Second, and importantly, the appellant was not prejudiced by the introduction of the reply evidence. The appellant was not caught by surprise by the reply evidence. The evidence related to what was on the computer and the search and layout of the residence, which had already been disclosed. In addition, in the appellant’s examination in-chief, he discussed the layout of his house and the use of passwords. On cross-examination, he admitted that he did not use passwords on all of his devices.

[55] The appellant submits that the timing of the reply evidence prejudiced him. The appellant relies on R. v. G.(S.G.), [1997] 2 S.C.R. 716 in support of this argument. In that case, the majority of the Supreme Court of Canada held that the trial judge’s discretion to allow a Crown to reopen its case becomes narrower as the trial proceeds because of the increased likelihood of prejudice to the accused’s defence: at para. 30. Once the defence has begun to call evidence, any prejudice as a result of the Crown calling further evidence must be “the paramount consideration”: G.(S.G.), at para. 36. Where the Crown applies to tender evidence at a late stage in the proceeding, “prejudice to the accused is almost inevitable”: G.(S.G.), at para. 37.

[56] I do not find that G.(S.G.) assists the appellant given the unique circumstances of this case. In lengthier trials, there is a risk that as witnesses are called and cross-examined, the theory of the defence as it relates to the elements of the offence and to separate defences may be revealed. The prejudice arises from the fact that the Crown knows the position of the defence before the Crown has closed its case. That is not what occurred in this case. Here, the elements of the offence were proven in the agreed statement of facts. PC Pettapiece testified briefly but was not cross-examined about any aspect of the appellant’s defence. The Crown had no insight into the appellant’s defence until he testified.

[57] I also do not find that the appellant suffered prejudice because PC Pettapiece was present in the courtroom when the appellant testified and then gave reply evidence. The appellant has not explained how PC Pettapiece’s presence during the appellant’s testimony caused prejudice. While it may have been prudent that the officer left the courtroom, this was not a case where a complainant heard the evidence, and in reply, gave a different version of events to try and fit the evidence together with the accused’s evidence. The officer’s evidence was largely uncontested. It consisted of physical evidence found on the computer and the fact that the external storage device was not password-protected, which the appellant already admitted. The officer also gave evidence about the layout of the house, which appeared to be largely consistent with the appellant’s evidence.

[58] It was up to the trial judge to consider what weight to give to the reply evidence. The trial judge was well aware that the officer was present throughout the appellant’s evidence and is presumed to know the law: R. v. Dobberthein, [1975] 2 S.C.R. 560.

[59] In addition, the appellant gave surrebuttal evidence so he could address issues that arose out of the reply evidence. I do not find, as suggested by the appellant, that the appellant was precluded from addressing the issue of why there was adult pornography intermingled with the child pornography. In surrebuttal, the appellant’s counsel focused on the search of the residence. The appellant’s counsel did not ask any questions about the intermingling of the child and adult pornography. There is nothing to suggest that the trial judge prevented the appellant from addressing why there was adult pornography found on his computer. Rather, counsel for the appellant chose not to do so.

[60] Third, the reply evidence was not introduced to bolster the Crown’s case. It did not relate to the elements of the offence. The commission of the offence was admitted in the agreed statement of facts. The reply evidence responded directly to the appellant’s defence. As noted in R.D., reply evidence is not limited to matters or defences that the Crown could not have reasonably anticipated: at para. 21. “Evidence is the proper subject of reply if, on its own, it is not probative of guilt, and becomes relevant only as a result of the defence case”: R.D., at para. 21.

[61] None of the evidence introduced on reply was relevant to proving the Crown’s case. The reply went to disproving the appellant’s claim that he had an educational purpose for possessing the child pornography and that he had a safe storage program to ensure there was no undue risk of harm to persons under the age of eighteen years. For example, the Crown called reply evidence that the appellant had adult pornography intermingled with child pornography. The Crown suggested that this demonstrated that the appellant was viewing all of the material for his personal pleasure and not for an educational purpose.

[62] The Crown also called evidence regarding how the child pornography was named on the various devices. This evidence was relevant because the files did not appear to have been renamed for any educational purpose, but rather contained common child pornography file names.

[63] The Crown also called evidence about how the files were stored. The items on the storage device were not password-protected. The Crown also called evidence regarding the layout of the house, where the electronic devices were located, and whether the police located any other educational material. This evidence was relevant to the appellant’s claim that he had a safe storage plan to ensure there was no undue risk of harm to persons under the age of eighteen years.

[64] The Crown would have had no reason to lead the above evidence in its case in-chief. This is not akin to a case where self-defence is raised where there was a fight. In those circumstances, all parties are aware of the event that is in issue, and through the examination and cross-examination of the witnesses, the defence is developed and revealed. Even in those circumstances, reply evidence may be appropriate depending on the circumstances. In this case, the Crown had no idea what educational purpose the appellant would allege as a defence. Similarly, the Crown had no details with respect to why the appellant believed his possession of the child pornography would not create an undue risk of harm. The Crown did not know about the appellant’s safe storage plan. Under the appellant’s assessment, the Crown would have had to guess and lead evidence which, in the end, may have virtually no significance in this case: W.(A.), at para. 32.

[65] Fourth, this was a judge-alone trial. Therefore, the risk that the late introduction of the evidence might magnify its importance beyond what was warranted is less of a concern than it would be if this were a jury trial: Sanderson, at para. 44.

[66] In conclusion, I do not find that this was a case where the Crown “lie[d] in wait” to determine what evidence it needed to call to prove its case beyond a reasonable doubt: Sanderson, at para. 36, citing R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1364. The Crown’s case had been admitted. While the Crown had an indication of what the appellant’s defence was going to be, the Crown had no idea of the details or what evidence in the Crown’s possession would be relevant to disprove the defence. The reply evidence was necessary to “ensure that each party has had an equal opportunity to hear and respond to the full submissions”: R.D., at para. 17. The trial judge also permitted surrebuttal evidence to ensure the appellant had a fair trial.

[67] Given all of these circumstances, I am satisfied that the trial judge did not err in permitting the Crown to call the reply evidence. Therefore, I would not give effect to this ground of appeal.

ISSUE #2: DID THE TRIAL JUDGE IMPROPERLY CONSIDER THE MERITS OF THE APPELLANT’S PURPOSE?

General Principles

[68] Parliament created the legitimate purpose defence because it recognized that the laws criminalizing possessing and accessing child pornography could impinge on the values guaranteed by the right to freedom of expression, including artistic creativity, education, or medical research: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 60. Given the importance of freedom of expression, the legitimate purpose defence “should be liberally construed”: Sharpe, at para. 60.

[69] In considering whether the appellant had a legitimate purpose related to education, the court must first evaluate whether the appellant has left the court with a reasonable doubt that he had a subjective, genuine, good faith reason for possessing the child pornography for an educational purpose: Katigbak, at para. 58.

[70] The legislation also requires the court to consider whether the accused’s stated purpose is “legitimate”. This requires the court to consider whether, based on all of the circumstances, a reasonable person would conclude that: i) there is an objectively verifiable connection between the accused’s actions and the educational purpose; and ii) whether there is an objective relationship between the accused’s purpose and one of the protected activities: Katigbak, at para. 60.

[71] In making this objective assessment, the court is not involved in any assessment of the “value” of the particular educational activity in question: Katigbak, at para. 61. As explained by the Supreme Court of Canada in Sharpe, courts are ill equipped to inquire into whether or not a work of art is good or not: at paras. 61-65. A bad artist should not be denied protection of the defence. The court in Sharpe also held that the defence of “artistic merit” as it existed under the previous legislation “should be interpreted as including any expression that may reasonably be viewed as art” as “[a]ny objectively established artistic value, however small, suffices to support the defence”: at para. 63.

[72] The same analysis applies to educational and scientific purposes. As the Supreme Court of Canada held in Katigbak, at para. 61:

It is important to stress that this objective assessment does not involve the court in any assessment of the value of the particular scientific or artistic activity in question. As this court held in Sharpe, courts are ill equipped to inquire into whether or not a work is “good” art or not (paras. 62-65). Similar logic applies to the other enumerated categories set out in s. 163.1(6)(a). However, courts are well equipped to assess what is objectively reasonable in all the circumstances. Thus, when determining whether or not the accused has a legitimate purpose related to science, for example, courts will not evaluate whether or not the project has any scientific merit. However, the court can and must assess whether there is an objective connection between the accused’s actions and his or her stated purpose and, further, whether there is an objective relationship between the accused’s stated purpose and one of the protected activities. [Emphasis added.]

Position of the Parties

[73] The appellant submits that when various passages of the trial judge’s reason are read cumulatively, it is clear that the trial judge rejected the appellant’s evidence because he did not have the necessary background to create useful educational material. The trial judge therefore erred in assessing the merits or value of the appellant’s educational purpose in possessing and accessing the child pornography. The appellant submits that it is crucial that a trial judge not consider the merits because of the limiting impact it has on the freedom of expression.

[74] The appellant points to various statements in the trial judge’s reasons that demonstrate this error, including:

1. “accepting for the moment his goal was in training others and that goal would be admirable, the court is really at a loss to understand on Mr. Mellor’s evidence how the viewing of child pornography could benefit his research. There simply is no reasonable connection the court finds between the two.” (para. 97)

2. “it is simply not believable to expect someone with no or limited experience such as Mr. Mellor to have the ability to produce for education purpose a product would be credible or useful.” (para. 98)

3. “His evidence as to his own expertise and ability to make the connection between the viewing of the child pornography and his research is not apparent to the court.” (para. 100)

4. “Mr. Mellor has nothing in his education that is specific to the issue before the court. The court is not even certain when he actually received his degree, but it is hard to make an objective connection between a philosophy degree and the research that the appellant undertook.” (para. 103.)

[75] The appellant also submits that intertwined with the error of considering the merit of the educational purpose, the trial judge erred in his credibility findings. The appellant submits that there is no basis to find that the appellant “was careless with the truth”. There were no internal inconsistencies in the appellant’s evidence, nor was he caught in any lies. The appellant readily admitted facts that were not helpful to him, including that the police uploaded child pornography files from his computer.

[76] The Crown submits that the trial judge did not evaluate the merit of the appellant’s educational purpose in downloading and accessing the child pornography. Rather, the trial judge assessed whether there was any merit to the appellant’s claim that he possessed the child pornography for an educational purpose. The trial judge concluded that no objectively reasonable person would accept that there was any connection between the appellant accessing and viewing child pornography and his stated purpose. He came to this conclusion given that the appellant had no related training or experience, no real job history, no relevant academic qualifications, no verifiable background in research or publication, and no related notes or drafts of the training manual.

Analysis

[77] When the trial judge’s reasons are read as a whole, I do not find that the trial judge erred in assessing the value of the appellant’s educational purpose. Rather, the trial judge considered the appellant’s lack of educational background in assessing the appellant’s credibility and in finding that there was no objective connection between the appellant’s possession of child pornography and his stated educational purpose.

[78] The trial judge considered the appellant’s lack of educational background, along with other factors, in finding that the appellant’s stated educational purpose did not exist. The trial judge found that the appellant was accessing and possessing child pornography for his own enjoyment. The trial judge also found that there was no objective connection between the appellant’s possession of child pornography and his stated purpose of creating a training program to recognize child predators and victims of child abuse.

[79] While the trial judge did not address the subjective and objective factors separately, he sufficiently explained his reasons for finding why he found that the appellant had no legitimate purpose for possessing and accessing child pornography on both a subjective and objective basis. The factors the trial judge considered are noted above at para. 35 of these reasons.

[80] The appellant’s submission that the trial judge’s assessment of the appellant’s experience or background is akin to assessing the merits of the educational purpose makes the legitimate purpose defence entirely subjective. That interpretation of the provision was rejected in Katigbak, at para. 58. The defence has both a subjective and an objective requirement.

[81] The trial judge did not improperly assess the value of the educational product. The trial judge did not state that viewing child pornography could not be used to try to identify sexual predators or victims of sexual abuse. Rather he found that there was no reasonable person would conclude that there was any objective connection between the appellant’s possession of child pornography and his purpose of creating a training program to identify sexual predators in community service organizations. In coming to this conclusion, the trial judge was entitled to consider the appellant’s lack of evidence explaining how viewing child pornography was relevant to his research, as well as his lack of expertise or qualification to conduct this type of research. It is in this context that the trial judge stated, “it is simply not believable to expect someone with no or limited experience such as Mr. Mellor to have the ability to produce for education purposes a product that would be credible or useful.”

[82] I also do not find that the trial judge’s comment in his sentencing reasons that, “one wonders as noted in my reasons for judgement, how any reasonable person could objectively expect to draw any rational or valuable conclusions with respect to the facial expressions” can be read in isolation. The trial judge’s reasons for judgment demonstrate that the trial judge was not focusing on the merits of the research, but rather was focusing on whether it was objectively reasonable that the appellant possessed child pornography to develop his training program. Given the appellant’s lack of work or educational experience, lack of any notes, the fact that adult pornography was intermixed with child pornography, and the fact that he never discussed his research with anyone, it was open to the trial judge to find that the appellant’s possession of child pornography was not objectively connected to an educational purpose.

[83] A trial judge is entitled to consider a person’s educational or work background in assessing the credibility of the accused’s evidence and in assessing if there is an objective connection between an accused possessing child pornography and their asserted educational or scientific purpose.

[84] In Katigbak, the Supreme Court of Canada used an example where child pornography was collected by medical professionals for the purpose of showing the material to convicted sex offenders as part of a treatment program: at para. 62. This example was used to explain the difference between the objective component branch of the defence and the “undue risk of harm” under the second branch. The court held that a reasonable person could conclude in those circumstances that there was a connection between the impugned act and the purpose of treating sexual offenders, and a relationship between the medical purpose and the protected activity of science or medicine: Katigbak, at para. 62. However, “the question [of] whether the collection of pornographic material depicting actual children for the stated purpose goes too far is one that falls to be determined under the second branch of the defence”: Katigbak, at para. 62.

[85] The fact that medical professionals engaged in that type of activity was relevant to the reasonableness of the objective connection between the action of possessing the child pornography and the medical purpose of treating sexual offenders. Similarly, the appellant’s lack of work or academic experience is relevant to whether there is a reasonable connection between the appellant’s possession of child pornography and the educational purpose. See also R. v. Vander Leeuw, 2019 ABQB 627, at para. 38.

[86] I also do not find that the trial judge erred in his credibility findings with respect to the appellant’s evidence. Just because a witness’s evidence did not have inconsistencies does not mean that the trial judge must accept that witness’s evidence. There is nothing improper with a judge assessing evidence in a common-sense approach and finding that a witness’s evidence is implausible: R. v. H.C., 2009 ONCA 56, at para. 64. In this case, the trial judge considered the relevant circumstances and ultimately found that the appellant’s evidence was not credible. The trial judge did not believe that the appellant possessed the child pornography for a legitimate educational purpose. This was an assessment that the trial judge was entitled to make based on all the evidence.

[87] This ground of appeal is dismissed.

ISSUE #3: DID THE TRIAL JDUGE ERR IN ASSESSING THE EVIDENCE OF UNDUE RISK OF HARM?

General Principles

[88] The defence under s. 163.1(6) has two independent requirements. First, s. 163.1(6)(a) lists the circumstances that may be considered prima facie capable of providing a legitimate purpose. Section 163.1(6)(b), which assesses whether there was an undue risk of harm to persons under the age of eighteen years, “only comes into play after the court has held that the accused had a ‘legitimate purpose’”: Katigbak, at para. 64. The question that the court must determine at that point is “what degree of harm will be tolerated in the case of activity that has a legitimate purpose”: Katigbak, at para. 64.

Analysis

[89] I have already determined that the trial judge did not err in finding that the appellant had no legitimate purpose in accessing and possessing child pornography. Given this finding, I see no reason to engage in a speculative analysis of whether the trial judge’s obiter comments on this issue were in error.

[90] Therefore, this ground of appeal cannot succeed.

CONCLUSION

[91] For the reasons outlined above, the appeal is dismissed.

Dennison J.

Released: August 11, 2020