R. v. Petts, 2023 ONSC 7177
COURT FILE NO. 15698/21
DATE: 20231221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ANDREW KEVAN PETTS
Paul Affleck, for the Crown
Sean Fraser, for the defence
Heard: March 13, 14, 15, 16, & 17, and August 31, 2023
S.T. Bale J.:-
INTRODUCTION
[1] Andrew Petts has pleaded not guilty to two counts of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code, and one count of accessing child pornography, contrary to s. 163.1(4.1) of the Code.
[2] Count 1 relates to images and videos found on a laptop computer, a cell phone and several USB drives. Mr. Petts admits the devices to have been in his possession, and that the images and videos alleged to be child pornography are child pornography as defined in s. 163.1(1) of the Code. However, he denies having knowledge that any of the images or videos resided on any of his devices.
[3] Count 2 relates to a sex doll seized from his bedroom. He admits that he possessed and used the doll but denies that it is child pornography as defined in the Code.
[4] Count 3 is an allegation that Mr. Petts accessed child pornography while in Ontario between March 13, 2018 and May 8, 2018. Crown counsel concedes that the evidence led at trial was insufficient to support a conviction on that count.
EVENTS OF SEPTEMBER 28, 2018
Evidence of Kevin Rutherford
[5] Mr. Petts lived in a house on Holt Road in Bowmanville with three housemates – Kevin Rutherford, Daniel Greer and Matthew Scatterty. Mr. Rutherford, Mr. Scatterty and Mr. Petts gave evidence as to the events of September 28, 2018.
[6] On that date, Petts and Rutherford decided to watch a movie – Solo: A Star Wars Story which Rutherford had on his desktop computer. To watch the movie in the living room, they required a USB drive which would be plugged directly into the TV. Although there were usually one or more USB drives in a “junk bowl” on the coffee table in the living room, there were none on this occasion.
[7] Mr. Petts went up to his room and retrieved a USB drive and brought it downstairs. He told Rutherford that he might have to reformat it. Rutherford took it to his room and put it into his desktop computer. When he opened the drive, he saw a number of image files. Out of curiosity, he opened one. It was sexual but he thought it could be an older person who looked young. He opened a second one which clearly depicted a pre-teen. He said that he then started shaking. He had never before seen child pornography. He wasn’t sure how to deal with the situation but knew he had to give the USB drive to the police. He gathered his thoughts and then called his girlfriend. He wanted to leave the house with the USB key without Petts becoming suspicious. He asked his girlfriend to call him back in five minutes and give him an excuse to get out of the house. He said he was kind of in shock – like after being in a car crash – not quite sure what he was doing.
[8] When his girlfriend called, Rutherford told Petts that he had to help her with her car. He went to her house and spoke with her. He then went to see his brother for advice. His brother agreed that he should give the USB drive to the police. He then called the police from his brother’s house and several hours later, two officers arrived to speak with him. He handed over the drive. The following Wednesday, the police conducted a search of the house where Petts and his housemates lived.
Evidence of Matthew Scatterty
[9] Mr. Scatterty was home at the time. He was intending to watch the movie with Rutherford and Petts. He remained for awhile in his room reading. When he went downstairs to see if the movie was starting, Petts told him that Rutherford had to run off because of some sort of emergency. He then went back up to his room and continued reading.
Evidence of Andrew Petts
[10] Mr. Petts did not dispute Rutherford’s version of the events of September 28, 2018. In particular, he acknowledged that he had given the USB drive to Rutherford which later became known as USB01. He said that he was looking for a drive that had sufficient capacity to accommodate the film and that before giving it to Rutherford, he had taken a “quick glance” at it on his Chromebook and saw nothing of value. He said that he saw a series of folders, and the names of the top couple of folders gave him the impression that it contained just “something Linux” which was unnecessary. He said that he told Rutherford that it had some Linux files on it and that he might have to reformat it. He said that he had never used the drive to access child pornography and did not know there was child pornography on it, until he read the Crown disclosure.
CHILD PORNOGRAPHY EVIDENCE
Detective Christianson
[11] At the time of the events in question, Darcy Christianson was a detective in charge of the Internet Child Exploitation Unit of the Durham Regional Police.
[12] On October 1, 2018, Det. Christianson obtained and executed a warrant to search the USB drive Rutherford had turned over to the police. Finding on the drive what he believed to be images and videos meeting the Criminal Code definition of child pornography, he applied for and obtained a warrant to search the house where Petts and his housemates lived. The warrant was obtained on October 2, 2018, and executed on October 3, 2018. Among the items seized were an HP Omen gaming laptop, two USB drives and a ZTE cell phone. The laptop and USB drives were found in Petts’ bedroom; the ZTE phone was found in the living room. The laptop contained two hard drives, referred to in the evidence as HD01 and HD02. The USB drives found in Petts’ bedroom were referred to as USB03 and USB07. The USB drive Rutherford turned over to police was referred to as USB01.
[13] Using Semantics 21 software, Det. Christianson analyzed the images and videos on the seized devices. He categorized them using three categories:
Category 1 – images that he found to be child pornography;
Category 2 – images in which the age of child was in question (could also include child nudity not for a sexual purpose);
Category 3 – images unrelated to child pornography.
He said that he would err on the side of Category 2 rather than Category 1.
[14] In the root directory of USB01, Det. Christianson found 1,226 unique Category 1 images which he described as follows:
The images were mainly of white female children approximately 5-13 years of age. There were also some images of male children and animated images of children involved in sexual acts. The images ranged in severity from children in tight underwear exposing the shape of their genitals, to bestiality. The sexual acts in the images included anal and vaginal intercourse, masturbation, fellatio, bondage, and self-exploitation.
[15] In a subfolder on USB01, Det. Christianson found 11 unique Category 1 videos which he described as follows:
The videos were of female children from infancy to approximately 13 years of age. The videos ranged in severity from young teens simulating sexual acts in tight underwear exposing the shape of their genitals, to an adult male attempting intercourse with an infant female. Other sexual acts in the videos included anal and vaginal intercourse, masturbation, stripping and recorded self-exploitation.
[16] On HD01, HD02 and USB03, Det. Christianson found a total of 315 unique Category 1 images which he described as follows:
The images were mainly of white female children approximately 5-14 years of age and animated images of children involved in sexual acts. There were also some images of male children. The images ranged in severity from children in tight underwear exposing the shape of their genitals to intercourse. The sexual acts in the images included vaginal intercourse, masturbation, fellatio, and self-exploitation. There were also images of white teenage females where sexual captions were written on the images.
[17] On USB07, Det. Christianson found 2 unique Category 1 videos which he described as follows:
Both of these videos were of white teenage females 11-14 years old. During these videos, the girls self-exploit and record themselves in their underwear showing off their genital or anal region.
[18] On the ZTE cell phone, Det. Christianson found 7 unique Category 1 images which he described as follows:
There were animated images of children involved in intercourse and masturbation and a .gif image of a female child engaged in fellatio with 2 adults.
[19] Det. Christianson was not cross-examined. Defence counsel advised that his descriptions of the images and videos found on the devices is not disputed. He also conceded that the images and videos found to be Category 1 meet the definition of child pornography in s. 163.1(1) of the Criminal Code.
[20] Also seized when the search warrant was executed was a sex doll. When the doll was seized, a translucent fluid ran from one of the orifices. Mr. Petts provided a blood sample and an analysis was carried out by a Dr. James Morrow of the Centre of Forensic Sciences. In an agreed statement of facts, the defence accepted Dr. Morrow’s opinion that semen was found on the doll and that it was over a trillion times more likely that Mr. Petts, rather than someone unrelated, was the source of the DNA profile extracted from the semen.
Detective McGill
[21] Detective John McGill carried out a forensic examination of the HP laptop, USB01, USB03, USB07 and the ZTE cell phone, and prepared two reports.
McGill first report
[22] One of the findings in his first report was that a “jump list” created on the laptop on March 26, 2018 contained a file named backentry.avi which had been found by Det. Christianson to contain child pornography. Based on the contents of the jump list, Det. McGill concluded that USB01 had been in the laptop on March 26, 2018, and on that date, backentry.avi had been opened on the laptop from USB01.
McGill second report
[23] In September 2022, Mr. Petts attended at the police station and provided evidence that he had been in New Brunswick between March 23, 2018, and May 8, 2018. He did not say what devices he had taken with him. Following this interview, Detective McGill prepared a second report.
[24] The purpose of the second report was to prove that Mr. Petts had the laptop and USB01 with him in New Brunswick. In this second report, Det. McGill reached the following conclusions:
• that USB01 had been in the laptop on March 13, 2018, and on that date, certain files had been opened on the laptop from USB01;
• that on March 22, 2018 (the day before Mr. Petts left for New Brunswick), a screenshot of a map of the area in which Newman House was located was created on an Android phone which, on May 3, 2018, created a file on the laptop;
• that on March 26, 27 and 28, 2018, a user of the laptop had used Microsoft Edge or Internet Explorer to open certain files on the laptop from USB01;
• that USB01 had been in the laptop on March 28, 2018, and that on that date, a certain file had been opened on the laptop from USB01;
• that on April 2, 2018, a screenshot of a Duolingo practice time notification was created on an Android phone which then created a file on the laptop on May 3, 2018 – the phone was logged into the Newman House Wi-Fi network when the screenshot was created;
• that on April 15, 2018, a cookie was created on the laptop indicating that the user had visited www.newmanhousehostel.com (Mr. Petts had stayed at Newman House when he was in New Brunswick);
• that on April 16, 2018, a user of the laptop had logged into what appeared to be Mr. Petts’ Great West Life group benefits account; and
• that the laptop was logged into the Newman House Wi-Fi network with a password between March 23, 2018 and May 7, 2018 (the dates Mr. Petts had stayed at Newman House).
HOUSEMATES’ EVIDENCE
Evidence of Kevin Rutherford
[25] Mr. Rutherford testified that he knew Mr. Petts from high school and had reached out to him to see if he was interested in living at Holt Road. He said that they got along “pretty well” and that he had no reason to want him out of the house.
[26] When asked whether he had ever used Petts’ laptop, Rutherford testified that he did not believe he had, but that Petts would use it a lot in the living room. He said that he may have tried it out when Petts first bought it. He also said that he didn’t believe that he had ever used Petts’ Asus Chromebook. On cross-examination, he agreed that although Petts did not store the laptop in the living room, it would not be uncommon for him to leave it there when he was not there. When asked if he recalled Petts telling him on at least one occasion that he could use the laptop, he said that he did not recall such an occasion, but that it would not have been unusual for Petts to have done so. He said that he had never witnessed Greer or Scatterty using Petts’ laptop.
[27] Rutherford testified that he was never told Petts’ password for the laptop. He said that he would assume that it was password protected but did not know whether it was. He said that he did not know where the laptop was while Petts was in New Brunswick, but assumed that he had taken it with him.
[28] Rutherford said that he had never downloaded child pornography and would not know where to find it.
Evidence of Daniel Greer
[29] Mr. Greer testified that he did not know Petts before Petts moved into the house. He said that he liked having Petts as a housemate, and that there was no animosity between them. He thought that Petts and Rutherford got along well. He had his own devices - a MacBook, an iPad and either an iPhone or a Blackberry – he had no reason to use Petts’ devices and had not used them. He said he had never downloaded child pornography and would not know where to find it. He did not have passwords to any of Petts’ devices and does not recall any of them sharing their passwords. He agreed that it was common for them to leave their devices in the living room – there would be computers lying around but he does not remember any specific ones. He said that if Petts did leave his computer home when he went to New Brunswick, he assumes he would have left it in his room and added: “We never went into his room.”
Evidence of Matthew Scatterty
[30] Mr. Scatterty said that Petts had several gaming devices – an Xbox, a Nintendo Switch and a gaming laptop which he occasionally gamed on. He said that he assumes that the laptop was password protected and that if it was, he did not know the password. He had never opened the laptop up himself – Petts had always opened it up for him. He had never used the laptop without asking Petts and Petts being present. All he would have done was use the controller from the couch. He had no recollection of whether Petts had left his laptop behind when he went to New Brunswick. He said that he had never downloaded child pornography and does not know where people find it, although he guessed that it would be the dark web.
[31] Scatterty testified that for the first year that Petts had lived in the house, Petts had been one of his best friends. He said that although they had remained friends for the last six months Petts lived there, they were less so because he felt that Petts had become condescending. When asked if it got to the point that he wished Petts would move out, he said that he felt some relief after Petts left, but it was not something he had felt before that.
ANDREW PETTS’ EVIDENCE
[32] Mr. Petts was employed by Ontario Power Generation as a radiation safety technician. He said he worked six months on, six months off – 10-12 hours per day, 6 days a week. He said that when he wasn’t working, he liked to get out into nature – he was away from the house as often as he was there.
[33] He said that he had never used any of his devices to download or view child pornography. He said that he had never used USB01 to access child pornography and did not know that there was child pornography on it until he read the Crown disclosure.
[34] When asked on examination-in-chief about his use of the drive, he said:
Q. Is there anything distinct you can remember about your use of that stick in the, in the past?
A. Other than the fact that it has Linux on it, which would eliminate Matt and Dan as users – no.
Q. Alright and why would that in your mind eliminate those two as users?
A. I believe Dan is nowhere near computer proficient enough to have an understanding of Linux. And Matt, I don't know actually why I thought Matt as well.
[35] Mr. Petts said that while living at Holt Road, he purchased an HP gaming laptop, and an Asus Chromebook – in that order. He said that the laptop was set to sync all devices, and that it was set to require a password only on initial startup. He said that it was set up that way so that he would not have to bother with passwords, and that if someone wanted to look something up, he could just hand the laptop to them – he wouldn’t have to help them get into it. He said that prior to the date of his arrest, he never had any concern about his housemates using the laptop. He said that while he has no specific memory of giving the password to them, he knows that “it would have occurred.” He said that he gave them permission to use the laptop for video games, but that if they had needed to use it for anything else, he would have let them. The laptop would be on the coffee table or under the TV, and would be operated with an Xbox or Playstation controller from the couch.
[36] He said that he had once walked into the living room and found Scatterty playing Grand Theft Auto using the laptop. He said that Rutherford used the computer with him – they played two-person games. He does not recall Rutherford using it on his own. He said that Greer would poke fun at him for having such a fancy computer – Greer sticks to vintage electronics and had no interest in using the laptop. He said that his phone was set so as to not require a password when it was at the Holt Road address or his mother’s address. He said that he never saw anything he took to be even a slight indication of improper use of his laptop.
[37] Mr. Petts testified that he considered all three housemates to be friends. He said that he knew Greer the least of the three but that they “got along like chums” and would laugh together. There was no friction between them. He said that he considered Scatterty to be a good friend for the entire time he lived at Holt Road and seemed surprised to hear Scatterty’s evidence that they had become somewhat less friendly for the last six months. He said he had never sensed that to be the case and considered him a good friend up to the date of his arrest. When asked if there had been any friction between himself and Rutherford, Petts said that sometimes he took a “small amount of umbrage” at Rutherford’s homophobic jokes. He agreed that it was a “roommates joking kind of thing” but said it hit him a little deeper than he thinks Rutherford realized – because of his own concerns about his sexuality. He did not attribute ill-will to any of the three.
[38] He said that he took his Chromebook with him to New Brunswick but left his laptop behind in his bedroom. He said that he did not want to risk taking the laptop on a flight or for a long cab ride, and it was for that reason that he took his Chromebook instead. He noted that travelling by air, he would have to go through airport security where any electronics he carried would be subject to inspection.
[39] With respect to the sex doll found in his bedroom, Mr. Petts testified that he is a cross-dresser and purchased the sex doll solely for the purpose of practicing the use of makeup. When asked whether sexual attraction was at all a factor in his decision to purchase it, he said “no, not really.” He said that the latex skin of the doll was ideal for practising makeup which could be applied and removed without permanent staining. He said it functioned like real skin in the way that it absorbed makeup. He acknowledged knowing that he was ordering it from a sex doll web site, and that he knew it would have orifices and breasts, but said that ordering from such sites is one of the few ways of getting reliable quality latex skin.
[40] Mr. Petts said that the doll delivered to him was entirely different from the one he had chosen. He said that the biggest difference between the one he had chosen and the one he received was that he had ordered one with “C-cup breasts”, but the one delivered had “A-cup” or “B-cup” breasts. He said that a second “distinct difference” was that he had ordered a doll with a head of brown hair. He said that the reason for purchasing such a short doll was that his bedroom was small, and he needed to hide it – if his housemates were to see it, “it would be quite the embarrassment.” He said that to his knowledge, his housemates had not seen it. He said that he had only used the doll for sex on one occasion.
ANALYSIS
General principles
[41] As in any criminal case without a jury, my task as the trier of fact is to determine whether the evidence establishes Mr. Petts’ guilt on any or all the charges against him, on the criminal standard of proof beyond a reasonable doubt. The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not enough for me to conclude that Petts is probably guilty of any of the charges against him. While I do not have to be absolutely certain of his guilt to find him guilty, the standard of reasonable doubt "falls much closer to absolute certainty than to proof on a balance of probabilities": R. v. Starr, 2000 SCC 40, at para. 242. In short, in order to find Andrew Petts guilty of any one of the offences with which he is charged, I must be sure, based upon all the evidence given at trial, that he committed all the essential elements of that offence.
[42] Additional considerations apply in cases like this one where the accused has called evidence of his own and has testified on his own behalf.
[43] With respect to Count 1, I must find Mr. Petts not guilty in any of the following situations:
First, if I believe his testimony that he had no knowledge of the existence of child pornography on the devices on which child pornography was found;
Second, if I do not affirmatively believe his denials, but his testimony and the other evidence which supports his denials leaves me with a reasonable doubt; or
Third, if I entirely reject his evidence as unbelievable, but am still not satisfied of his guilt beyond a reasonable doubt, based on the evidence that I do accept.
[44] Mr. Petts admits that he purchased the sex doll and had intercourse with it. The issue with respect to Count 2 is a question of law: was the doll “child pornography” within the meaning of s. 163.1 of the Criminal Code.
[45] Crown counsel concedes that there is no evidence to support Count 3; and accordingly, I must find Mr. Petts not guilty of that offence.
Similar act evidence and opinion evidence
[46] During my deliberations following trial, I became concerned about two issues which counsel had not addressed in final argument. The first related to cross-count similar act evidence: Crown counsel had submitted that in deciding whether Mr. Petts’ had knowledge of the images and videos on his laptop and other devices, I should consider all the evidence, including the sex doll evidence. The second related to whether certain evidence given by Det. McGill was inadmissible opinion evidence, given that he had not been qualified as an expert. As a result, I re-called counsel for argument on these issues.
Cross-count similar act evidence
[47] The question here is whether I can use the evidence of Mr. Petts’ possession and use of the sex doll in considering my verdict on the charge related to possession of the images and videos found on his laptop and other devices.
[48] As a general rule, evidence of the accused’s discreditable conduct is inadmissible, unless that conduct is the subject of the charge in question: R. v. Tsigirlash, 2019 ONCA 650, at para. 23. However, there is an exception to the rule where the probative value of the evidence of other discreditable conduct outweighs its prejudicial effect.
[49] In order to determine whether similar fact evidence should be admitted, the court is required to conduct an admissibility inquiry. Rules 30.01-30.05 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) require that an application be made where a party seeks admission of “evidence of similar acts, whether included as other counts or not.”
[50] In the present case, no such application was made; however, Crown counsel argues that the rule does not apply in the circumstances of this case. I also note that defence counsel concedes that the defence was not prejudiced by the fact that no such application was made.
[51] Crown counsel does not argue that I should infer from Petts’ possession and use of the sex doll that he is the kind of person who would also possess child pornography in the form of electronic images and videos. Rather, he argues that I can infer, from the fact that the laptop and USB drives were found in close proximity to the sex doll, that Petts had knowledge of the images and videos on the laptop and other devices. In doing so, he relies on R. v. Graham, 2015 ONCA 113, R. v. Baksh, 2022 ONCA 481, and R. v. Jahanqiri, 2022 ONCA 644.
[52] In Graham, the issue was whether the accused was in possession of certain images and videos found in his home. At para. 29, the court found that certain cross-count evidence was admissible: in particular, evidence showing the accused’s familiarity with camera equipment; evidence that the same-sized video tape was used; evidence showing that a particular child had been filmed in two different apartments in which the accused had lived; and evidence that certain scenes were common among the videos. The court reasoned that the evidence made it likely that the same person had made all three videos, and that the unlikelihood of coincidence was overwhelming. However, the present case is not analogous. There is not the same commonality between Counts 1 and 2 as there was among the counts in Graham. Count 1 relates to possession of electronic images and videos; Count 2 relates to a physical object. The question of whether the doll, and the images and videos, were made by the same person does not arise.
[53] At para. 31 of Graham, the question was whether an admission of downloading child pornography related to one count was admissible in relation to other counts. The court found that the trial judge had used propensity reasoning but that it was not improper in the circumstances, because the probative value of the evidence exceeded its prejudicial effect. However, in the present case, Crown counsel does not rely on propensity and declined to argue for admission of the evidence based upon a probative value analysis.
[54] At para. 33 of Graham, the court found that evidence that printed images were found in the same box in the accused’s kitchen as a video charged in a separate count was evidence that the accused was in possession of both the printed images and the video. In the present case, using the same reasoning, Crown counsel argues that the fact that the sex doll and the laptop with the images and videos were found in Mr. Petts’ bedroom is evidence that he was in possession of the images and videos on the laptop. However, this is not a case of the doll and the laptop being stored together like the images and video in Graham. The laptop was in Mr. Petts’ bedroom when the warrant was executed, but it was often in the living room of the house or with Mr. Petts when he went to visit his mother. The fact that it was found in his bedroom along with his other possessions is evidence that it was his (a fact not in dispute), but I do not see it as evidence (propensity aside) that he knew that the images and videos were on the laptop.
[55] In Baksh the question was whether the trial judge had erred in using similar act evidence across four charges of trafficking in cocaine where the purchaser was the same police officer. The disputed evidence was that the trafficker had used the same vehicle on three of the occasions, that the trafficker has used the same phone number for each transaction, and that the trafficker recognized the police officer from one transaction to the next.
[56] At paras. 23 & 26 of Baksh, the court held that not all instances of reliance on evidence across counts amounts to impermissible similar act evidence; and that in that case, the trial judge was not required to conduct a similar act evidence inquiry. The trial judge had not relied on the evidence to reason that the accused was the trafficker because he behaved in the same or similar ways on each occasion. “Rather, he had relied on specific pieces of evidence linked to the trafficker - his car, his cellphone and his apparent familiarity with DC Singer – as confirmatory of DC Singer’s identification of the appellant as the trafficker.” The disputed evidence was equally relevant to each of the three counts.
[57] Baksh may be distinguished from the present case on the basis that Mr. Petts’ admission of possession and use of the sex doll is not direct evidence that he had knowledge of the images and videos on the laptop. The only relevance of the sex doll evidence to the charge of possession of the videos and images would seem to be that his possession and use of the sex doll makes it more likely that he had knowledge of the images and videos on the laptop.
[58] In Jahangiri, the accused was charged with possession of cocaine for the purpose of trafficking. In addition to the cocaine, the police seized $18,000 in cash from a safe in the accused’s house and $50,000 in cash from a safe at his parents’ house. The trial judge found that the cash seizure evidence gave rise to an inference that, at the material time, the accused was a drug trafficker, from which it could be inferred that, at the time of the offence, he was a drug trafficker who had possession of the drugs in issue.
[59] On appeal, the issue was whether the cash seizure evidence was discreditable conduct evidence. Crown counsel conceded that if it was, it ought not to have been admitted.
[60] Mr. Jahangiri relied on R. v. Lepage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654 where the court accepted that evidence that the respondent was a drug dealer was presumptively inadmissible discreditable conduct evidence, and admitted the evidence only after concluding that its probative value outweighed its prejudicial effect. The evidence in question was the evidence of another occupant of the house where the accused lived who said that he knew from living with the accused that he was a drug dealer.
[61] In dismissing the appeal, the court, at paras. 42-43, held that Mr. Jahangiri’s reliance on Lepage was misplaced. In Lepage, the probative force of the evidence had depended on propensity reasoning: the Crown relied on evidence of the accused’s prior conduct consistent with drug dealing to prove that he possessed the subject drugs at the time of the offence. By contrast, in Jahangiri, the probative value of the cash seizure evidence did not depend on propensity reasoning: the argument was not that because he possessed a significant amount of cash, the accused must have dealt drugs in the past, and was therefore more likely to be in possession of the drugs for the purpose of trafficking. Rather, the cash seizure evidence was contemporaneous circumstantial evidence consistent with the accused being a drug trafficker at the relevant time that could be used, together with the rest of the evidence, in determining whether he had possession of the drugs in issue.
[62] Crown counsel argues that the evidence of Mr. Petts’ possession and use of the sex doll is contemporaneous circumstantial evidence consistent with him being a person with a sexual interest in children, and that it is available to be considered, together with the rest of the evidence, in determining whether he had knowledge of the images and videos found on his laptop and other devices.
[63] Defence counsel concedes that the sex doll evidence may be used in this manner. However, he points out that a “delicate bit of reasoning” would be required to avoid propensity reasoning, and that before using the evidence for this purpose, I must first conclude from Mr. Petts’ possession and use of doll that he has a sexual interest in children. I agree with the submissions of both Crown and defence counsel on this issue.
Opinion evidence
[64] Crown counsel took no steps to qualify Det. McGill as an expert, and no evidence with respect to his qualifications was led. His evidence as to the meaning of certain artifacts found on Mr. Petts’ laptop and other devices went in without objection from defence counsel. However, in argument, I questioned whether at least some of his evidence amounted to inadmissible opinion evidence. In particular, I questioned the following evidence:
Det. McGill testified that on April 15, 2018, a newmanhouse.com cookie had been dropped on Mr. Petts’ laptop, that in his opinion cookies do not sync among devices, and that as a result, the laptop must have been in New Brunswick on that date. Mr. Petts disputed this theory and argued that cookies do sync;
On the first day of his testimony, Det. McGill testified that on April 16, 2018, a user of the laptop had logged into what appeared to be Mr. Petts’ Great West Life group benefits account. On the second day of his testimony, he acknowledged that some logins may sync, and that he had been unsure about this login, but that he had looked at some of the data that morning and concluded that this particular login was local. Mr. Petts disputed this evidence.
[65] In addition, I asked counsel more generally whether there were any other parts of Det. McGill’s evidence that should be ruled inadmissible as opinion evidence.
[66] In response, Crown counsel agreed not to rely on either of the specific points of evidence that I had referred to. With respect to the balance of Det. McGill’s evidence, Crown counsel cited R. v. Durignon, at paras. 42-49, and submitted that McGill was a witness with expertise or experience in computer-based technology and was entitled to give evidence as to facts he observed, without being qualified to give opinion evidence. At the same time, defence counsel advised that he would not argue that any other parts of McGill’s evidence were inadmissible as opinion evidence.
Count 1 – Possession of child pornography – images and videos
[67] Under s. 163.1(4) of the Criminal Code, possession of child pornography is an offence. The external circumstances consist of possession of the prohibited subject-matter. The mental element includes knowledge of the character of the subject-matter.
[68] In this case, Mr. Petts concedes that his HP laptop, his ZTE cell phone, USB01 (given by him to Rutherford), and USB03 and USB07 (seized from his bedroom) contained images and videos meeting the Code definition of child pornography. The issue in relation to Count 1 is whether the evidence established that he was in possession of those images and videos. This required the Crown to prove, beyond a reasonable doubt, that he knew the nature of the material, had the intention to possess it, and had the necessary control over it: R. v. Villaroman, 2016 SCC 33, at para. 10.
[69] Crown counsel’s position on Count 1 is that upon a consideration of the evidence considered as a whole, including the fact that the images and videos were found together with the sex doll in Petts’ bedroom, the only rational conclusion is that Mr. Petts’ guilt has been proved beyond a reasonable doubt.
[70] Defence counsel’s position on Count 1 is that there is alibi evidence establishing that someone other than Mr. Petts used his laptop to view child pornography, and that there are “logical possibilities” other than guilt that would explain how the images and videos landed on his laptop and other devices.
Alibi issue – Whether Mr. Petts took his laptop to New Brunswick
[71] In his first report, Det. McGill said that on March 26, 2018, USB01 had been in Mr. Petts’ laptop, and that “backentry.avi” (a file that Det. Christianson had determined to be child pornography) had been opened on the laptop from USB01. The defence does not dispute this evidence.
[72] However, the defence argues that Mr. Petts was in New Brunswick on March 26, 2018, that he did not take his laptop with him to New Brunswick, and that therefore, Det. McGill’s finding is evidence that someone other than Petts was using his laptop to view child pornography.
[73] In support of that argument, defence counsel refers to Mr. Petts’ evidence that he did not take his laptop to New Brunswick, and the evidence of his mother, Deanne Petts, with whom he has been living since his arrest. Her evidence was that he stayed at her house overnight, before heading to Toronto to fly to New Brunswick. The following morning, she drove him to the Oshawa GO station from where he would take the train to Toronto to catch his flight. She testified that he had with him a small black bag (like a gym bag) and an “army type” backpack. She said that she did not see his laptop with his luggage. She said that she did see his Chromebook in the pocket of the small black bag. She conceded that she did not look inside of either the small black bag or the “army type” backpack”, and that accordingly, it was possible that he had his laptop with him.
[74] While in New Brunswick, Mr. Petts stayed at a bed and breakfast by the name of “Newman House”. In Det. McGill’s second report, he said that Petts’ laptop had been connected to the Newman House Wi-Fi network, with a password, between March 23, 2018 and May 7, 2018 (the dates Mr. Petts had been in New Brunswick). Defence counsel did not object to the admission of this evidence.
[75] In his evidence, Mr. Petts denied that his laptop had ever been connected to the Newman House network. However, based upon Det. McGill’s finding that the laptop was connected to that network, I find that he did take his laptop to New Brunswick, and reject the argument that someone else must have used USB01 in his laptop on March 26, 2018.
“Logical possibilities” other than guilt
[76] The evidence led by the Crown to establish Mr. Petts’ possession of the images and videos was circumstantial. In assessing circumstantial evidence, the court must consider other plausible theories and reasonable possibilities inconsistent with guilt. Such plausible theories and reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence – not on speculation. The line between plausible theories 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 … The alternative inferences must be reasonable, not just possible”: Villaroman, at paras. 36-42.
[77] While not pointing the finger at any of Petts’ housemates, defence counsel argues that there were opportunities for them to use Petts’ devices in his absence; and that therefore, there are “logical possibilities” other than guilt to explain how the images and videos ended up on those devices. In support of that argument, he refers to the following evidence:
• that Mr. Petts’ laptop was often in plain view in his room or in the common area;
• Mr. Petts’ evidence that a password was not required to access the laptop, unless it was shut down;
• that Mr. Petts was often absent, leaving his laptop at the house; and
• that although there was no evidence that the laptop was left on when Mr. Petts went to New Brunswick, Petts testified that he left it in his bedroom in Bowmanville.
[78] Defence counsel acknowledges that Mr. Petts’ housemates testified “very well” and in a straightforward and apparently sincere manner but points out that their denial of any involvement with child pornography is one which any person would make in the circumstances of this case. He argues that it would be an easy narrative for them to keep straight.
[79] Defence counsel argues that the following are “logical possibilities” which go beyond mere speculation.
[80] First, he argues that it is logically possible that one of Mr. Petts’ roommates downloaded the images and videos on his laptop for a malicious purpose - to humiliate him or otherwise cause him pain and suffering. However, he concedes that it would take considerable animus for someone to do that, that there is no evidence to support such a possibility (“not even a hint” in the housemates’ evidence), and that Mr. Petts himself does not suggest that any of his roommates would have disliked him that much.
[81] Second, defence counsel argues that it is logically possible that it was an elaborate joke that got out of hand – “let’s see how much of this stuff we can put on his computer and his various devices and see how long it takes him to discover it, and then we all have a bit of a laugh about it at the end of the day” – but agrees that this theory would seem to be inconsistent with the evidence of Mr. Rutherford turning USB01 over to the police.
[82] Third, defence counsel argues that it is logically possible that one or more persons utilized Mr. Petts’ electronics to view child pornography, knowing that if the use came to light, it could not be traced back to them.
[83] However, for the following reasons, I do not accept that any of the three “logical possibilities” outlined by defence counsel, when considered in light of the whole of the evidence, are reasonably capable of supporting an inference other than guilt.
[84] First, Messrs. Rutherford, Greer and Scatterty testified that they had never downloaded child pornography, would not know where to find it, and had nothing to do with the child pornography found on Mr. Petts’ devices. They testified that they were friends of his and that there was no animosity between them. I have no basis upon which to reject their evidence.
[85] Second, Mr. Petts does not point the finger at any of his housemates. He agreed that they were friends, that there was no animosity between them, and that he had never suspected or had any reason to suspect, that they were downloading child pornography onto his devices. In his evidence, he specifically eliminated Messrs. Greer and Scatterty as users of USB01.
[86] Third, because of the sheer number of images and videos found on the multiple devices associated with Mr. Petts: 315 unique images on HD01, HD02 and USB03; 1226 unique images in the root directory of USB01; 11 unique videos in a subdirectory on USB01; 2 unique videos on USB07; and 7 unique images on his ZTE cell phone. The evidence does not support a finding that any of Petts’ housemates would have had the necessary access to download those images and videos, and it is improbable that Petts would have been ignorant of the presence of those images and videos on his laptop and other devices.
[87] Fourth, if Mr. Petts took his laptop to New Brunswick, as I have found that he did, he viewed child pornography on USB01, using his laptop, on March 26, 2018.
[88] Fifth, for the following reasons, I find that his possession and use of the sex doll demonstrated an interest in sexual relations with children and is therefore contemporaneous circumstantial evidence of his knowledge of the images and videos on his laptop computer and other devices:
• I do not believe that Mr. Petts paid $1,000 for a child-like sex doll, solely for the purpose of practising the application of makeup;
• he testified that he only had intercourse with the doll on one occasion which, if true, would imply a great coincidence – that the one use just happened to occur not long before the search warrant was executed; and
• when asked if he was sexually attracted to the doll, his answer was “not in general.” While agreeing that the fact that the doll was only 3-feet tall did not prevent him from becoming excited and ejaculating, he said that did not mean that it was the doll that excited him. He did not, however, offer another explanation.
[89] In the result, I do not accept Mr. Petts’ denial of knowledge of the images and videos found on his laptop and other devices, and when considered in the context of all the evidence, the evidence led by the defence does not leave me with a reasonable doubt as to his guilt on Count 1. Based upon the evidence led by the Crown, I am satisfied beyond a reasonable doubt of Mr. Petts’ guilt on Count 1.
Count 2 – Possession of child pornography – sex doll
[90] Mr. Petts concedes that he was in possession of the sex doll. However, he disputes that it constituted child pornography, within the meaning of s. 163.1(1) of the Criminal Code. Section 163.1(1)(a) of the Code provides as follows:
163.1 (1) In this section, child pornography means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.
[91] In R. v. Gagnon, 2020 QCCQ 2170, the court found a child sex doll to meet the definition of child pornography in s. 163.1(1)(a)(ii) of the Code. I agree with that decision and adopt parts of the court’s reasoning in my analysis.
[92] Defence counsel argues that the doll in the present case is different from the doll in Gagnon in two respects: (1) that unlike in Gagnon, there is no evidence in this case that the doll’s mouth was functional; and (2), that unlike the doll in this case, the doll in Gagnon had a heating element to simulate the warmth of a human body. However, while Mr. Petts’ doll may have had fewer features, it was still a sex doll, a fact he admitted in evidence.
[93] Under s. 163.1(1)(a)(ii) of the Code, the first question is whether a doll may be an “other visual representation.” In R. v. Sharpe, 2001 SCC 2, at para. 35, the court held that the definition of child pornography in s. 163.1(1) of the Code “ is broad enough to include drawings, paintings, prints, computer graphics, and sculpture: in short, any non-textual representation that can be perceived visually. Based upon this passage from Sharpe, I conclude that a doll may be an “other visual representation.” Like a sculpture, it is a non-textual representation that can be perceived visually.
[94] The second question is whether the dominant characteristic of the doll is the depiction of a sexual organ or anal region, for a sexual purpose. In Sharpe, at para. 50, the court held that an objective approach is required and that the question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” to be the depiction of the child’s sexual organ or anal region; and that “for a sexual purpose” should be interpreted in the sense of “reasonably perceived as intended to cause sexual stimulation to some viewers.”
[95] Defence counsel agrees that the doll involves a depiction and does not dispute that the depiction is for a sexual purpose. However, he argues that it is not open to the court to find that the dominant characteristic of the doll is the depiction of a sexual organ or anal region. He says that the doll is not “all about” either of those regions and that they are not the “centrepiece” of the doll itself. If they were, he says he would agree that the doll meets the definition. In response to a question from the bench as to what he considered the dominant characteristic of the depiction to be, defence counsel argued that the doll is the depiction of a human being “which may elicit sexual attraction and with which sexual intercourse may be experienced.”
[96] However, while I agree that the doll’s vagina and anus are small orifices and do not represent a large proportion of the doll in relation to the rest of the body, it does not follow that the dominant characteristic of the doll is not the depiction of the vagina or anus. What distinguishes the doll in this case from other dolls, such as those intended to amuse children, are the vagina and anus, the purpose of which is to allow it to be used for sexual purposes. Defence counsel argues that purpose is different from dominant characteristic; however, because the vagina and anus are what distinguishes it from other types of dolls, I find that the dominant characteristic of the doll in this case is the depiction of both a sexual organ and the anal region.
[97] The final question is whether the person depicted is under the age of eighteen years. In Manning, Mewett & Sankoff, Criminal Law, 5th ed., at ¶21.186, the authors advocate an objective assessment of the depiction: “would a reasonable person perceive the person in the representation as being under 18?” I agree.
[98] In this case, the doll is three-feet tall, with child-like features. Having viewed a photograph of the doll, I conclude that a reasonable person would perceive the person in the representation to be under the age of 18.
[99] In the result, I find that the sex doll in this case meets the Criminal Code definition of child pornography and based upon Mr. Petts’ admission that he was in possession of the doll, I am satisfied beyond a reasonable doubt of his guilt on Count 2.
Count 3 – Accessing child pornography
[100] The indictment alleges that Mr. Petts accessed child pornography in Ontario between March 13 and May 8, 2018. However, Mr. Petts was in New Brunswick during that time, except between March 13 and March 23, 2018. Det. McGill gave evidence that USB01 had been in the laptop on March 13, 2018, and that on that date, two files had been opened on the laptop from USB01. However, Crown counsel concedes that there is no evidence that either of those files contained child pornography; and more generally, that there is no evidence that child pornography was accessed in Ontario between March 13 and March 23, 2018. Mr. Petts is therefore entitled to an acquittal on Count 3.
CONCLUSION
[101] For the reasons given, I find Andrew Petts to be guilty on Counts 1 and 2, but not guilty on Count 3.
“S.T. Bale J.”
December 21, 2023
REASONS FOR JUDGMENT
S.T. BALE J.
December 21, 2023