COURT FILE NO.: CR-21-867-00
DATE: 2022 10 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
-and
Maria Stevens for the Provincial Crown
DAVID SCOTT
Naomi Lutes for David Scott
HEARD: August 8-12, 2022
REASONS FOR JUDGMENT
D.E. HARRIS J.
[1] Mr. Scott was tried on charges of possession and importation of child pornography. He arrived at Pearson Airport from Houston on June 27, 2020, originating from Belize. In his luggage were found numerous digital devices many of which contained images conceded to be child pornography. The key issue is whether it has been proven that Mr. Scott had knowledge of the child pornography on the devices.
[2] The circumstances of the finding of the material is recounted in the Charter ruling: R. v. Scott, 2022 ONSC 4496. It was agreed that the evidence from the Charter voir dire would apply to this trial. This judgment will focus on whether it can be inferred that Mr. Scott knew that the child pornography images and videos were present. If he knew of the general nature and details of the child pornography on the devices, the possession offence is made out: R. v. Morelli, 2010 SCC 8 at para. 16; R. v. Chalk, 2007 ONCA 815 at para. 25; R. v. R.S.J., 2020 ONSC 4030 at para. 12.
[3] If the possession charge is proven, because Mr. Scott brought the devices containing the pornography into Canada from outside the country, the importing charge will also have been proven.
THE DEVICES
[4] The Customs and Border Security Agency (CBSA) officers found in Mr. Scott’s backpack and suitcase, eight (8) external hard drives, three (3) cellular phones, six (6) USB keys and two (2) computer tablets including a Windows Surface tablet. Prior to these items being found, Mr. Scott had answered the three usual customs questions in the affirmative: the bags were his, he packed them himself and he was aware of the contents.
KNOWLEDGE OF THE DEVICES IN THE LUGGAGE
[5] It was argued that Mr. Scott’s answers to three additional questions posed by BSO Sodhi helped to prove knowledge. BSO Sodhi did not record the questions or the answers in his notes; they were in his narrative completed hours later. The questions asked, as recounted by BSO Sodhi, were: Are the devices yours? Did you buy them new? Are you the rightful owner of them?
[6] BSO Sodhi was quite hesitant and unsure of himself while reciting this evidence. He testified that Mr. Scott said yes in response to each question. However, the lack of contemporaneous notes and the first and the third questions being virtually identical convince me that this evidence is unreliable. I would not give it any weight.
[7] I accept the argument that the fact the password Mr. Scott gave to BSO Sodhi did unlock the Windows Surface tablet is of some importance. Furthermore, as part of the forensic examination, identifying information was found on several of the devices, making it clear that they were the property of the accused. For example, a digital file with a copy of Mr. Scott’s passport was found on the Surface computer.
[8] By far the most persuasive argument, however, is the simplest. The devices were in Mr. Scott’s luggage. There was never any suggestion or argument that it was not his luggage. Nor was there any suggestion that the contents were not his. In the absence of other evidence, of which there was none, it can be inferred that the devices in Mr. Scott’s bags were in fact Mr. Scott’s.
KNOWLEDGE OF THE CHILD PORNOGRAPHY ON THE DEVICES
THE DEMEANOUR EVIDENCE SAID TO PROVE KNOWLEDGE
[9] One of the arguments Ms. Stevens relied on to prove knowledge was premised on demeanour evidence. She pointed to,
i. Mr. Scott’s request to re-pack the hard drives into his suitcase. He had just been told that he could pack the rest of his belongings. In my view, this was a reasonable request in context. As after-the-fact or consciousness of guilt evidence, this is far too vague and ambiguous to assist in proving knowledge.
ii. Shifting of weight, leaning and pacing. Other travellers stay seated testified BSO Sodhi. I rejected the proposition that this kind of evidence was of any use in supplying search grounds on the Charter voir dire. The minimal worth of this evidence has not changed now that the benchmark is the higher proof beyond a reasonable doubt standard.
iii. Fidgeting and curiosity over what BSO Sodhi was doing at the counter. In BSO Sodhi’s experience most travelers just stand back and watch.
As with the previous category, the fact is, some people, guilty or innocent, will be more curious than others and more fidgety. Mr. Scott’s daughter was at the airport to pick him up. Perhaps he was impatient because he was thinking of her waiting for him? Many other possibilities come to mind. The myriad of innocent explanations dilute the guilty inferences and relegate them to the vanishing point. This evidence has no value.
iv. Lastly, reference was made to Mr. Scott’s response to the offer of counsel when he was formally detained. He said in response, “No, not yet”. To my understanding, the argument is that this implied that there might be a time later when the offer of counsel would be accepted: i.e. if contraband was found on the devices. This amounts to nothing more than speculation. It places far too much emphasis on what was almost certainly just an innocuous comment.
[10] I conclude that this evidence summarized above is unhelpful in proving knowledge of the child pornography on the devices. It suffers from many of the flaws discussed in the case law counselling circumspection in using demeanour evidence to draw inferences of an accused’s guilty mind: see e.g. R. v. G.M.C., 2022 ONCA 2 (Ont. C.A.) at para. 63-71; R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505 (Ont. C.A.) at paras. 44-45.
THE EVIDENCE OF CHILD PORNOGRAPHY ON THE DEVICES
[11] Child pornography was found on 7 of the devices: The Surface Pro tablet; a SanDisk USB; a Seagate hard drive; a Toshiba hard drive; a Western Digital hard drive; a second Seagate hard drive; and a mini SanDisk USB.
[12] The CBSA officers involved in the search at the airport found child pornography initially on the Surface tablet. There was a child pornography story and several photographs discovered and viewed by all the CBSA officers involved in the search. There was also a child pornography photograph found on one of the USB devices.
[13] Well after Mr. Scott was apprehended and charged, the officer-in-charge conducted a thorough manual search of the digital devices with the assistance of specialized software. The software detects accessible and inaccessible files. Accessible files in this parlance are files that an average computer user could access. Inaccessible files require specialized knowledge and software. It was accepted by the Crown that the accused could not be guilty of the charges with respect to inaccessible files.
[14] Accessible child pornography files were found on five of the devices: the SanDisk USB, the Seagate hard drive, the Toshiba hard drive, the Surface Pro, and another Seagate hard drive. There was a good many inaccessible files discovered as well. Although these cannot be the subject of a prosecution, I agree that they do demonstrate an interest in child pornography and for this reason, have evidentiary value on the question of knowledge.
[15] Ms. Lutes was successful in exposing problems with the Crown evidence argued to prove knowledge. There was no forensic evidence, as there often is in these type of cases, about when the files were downloaded, or how, or using what software. There was no reliable evidence as to how long the files had been retained on any of the devices. There was no internet download history or indications of child pornography being searched for by the user. There was no indication whether files had been accessed or opened. The expert Crown witness testified that the dates associated with the files were unreliable. It could be that the files were never accessed.
[16] There was no evidence of the files being carefully organized that would reveal an intelligent hand behind the scenes curating and categorizing the material. Furthermore, poor note taking by the border security officers rendered their evidence unreliable in some respects. There was also a possibility of tainting and contamination. That there were some hidden files made little sense because one would imagine that a user trying to secret away contraband, would ensure that all the files were hidden.
[17] There was file wiping software on the tablet. In Ms. Lutes submission, it defied logic that someone who had this software would not use it to delete the criminal material before crossing the border. Similarly, the Surface tablet had software which would make it difficult to access if the device was shut down. The evidence was that the tablet was probably in sleep mode.
[18] With respect to the devices themselves, there was no indication how old they were nor who had accessed them. Some of the create dates for the files, albeit of dubious reliability, predated the apparent age of the devices.
[19] There were other issues and potential problems raised in the evidence. In summary, Ms. Lutes argued that: 1. Mr. Scott may inadvertently have acquired the child pornography when downloading other material, adult pornography for example; 2. He may have received external devices from others without reviewing what was on them; and 3. Mr. Scott may have transferred data from an old computer not knowing the contents of that computer.
[20] If there was one digital device with child pornography found on it, these arguments might well carry the day and leave a reasonable doubt. The problem, as I see it, is the dispersal and volume of the child pornography throughout so many devices and in so many different areas of the devices. Contamination, holes in the evidence and other problems may be possible in isolation. But a finely knit web of circumstantial evidence is created by so many devices containing child pornography. It is virtually impossible to imagine that there was some misadventure involving all of the devices. One device, maybe. Two, unlikely. When we get up to the number here, 7 devices, it is virtually impossible. There is an inexorable logic to the coincidence of child pornography on so many different devices.
[21] The gravamen of this offence—knowledge--is premised on circumstantial evidence. Ms. Stevens relies on the following comments from Justice Cromwell in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000,
37 When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (Ont. C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw (1971), 1971 CanLII 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
38 Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty (Emphasis in Original).
[22] In this situation, the convergence of child pornography on the various devices forms powerful and persuasive circumstantial evidence towards guilt. The dispersal and volume of the criminal material permeating the devices pushes all innocent explanations aside. Plausible, non-culpable theories are simply not available. There are no threads of doubt pointing away from guilt that could possibly explain the child pornography files throughout the multiple devices. There is simply too much to account for. No reasonable explanations remain.
[23] In my view, the only reasonable inference available is that Mr. Scott knew the child pornography was on the devices. I am convinced beyond a reasonable doubt of his guilt.
[24] For these reasons, Mr. Scott will be found guilty of both counts on the indictment.
D.E. HARRIS J.
Released: October 14, 2022
COURT FILE NO.: CR-21-867-00
DATE: 2022 10 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and -
DAVID SCOTT
Applicant
REASONS ON CHARTER APPLICATION
D.E. HARRIS J.
Released: October 14, 2022