Court File and Parties
COURT FILE NO.: CR-23-1000016-00AP
DATE: 20240207
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. James Treloar
BEFORE: Justice S. Nakatsuru
COUNSEL: Joseph Hanna, for the Respondent
Jody Berkes, for the Appellant
HEARD: February 5, 2024
ENDORSEMENT
[1] James Treloar was convicted of one count of accessing child pornography and sentenced to six months in jail. He appeals both his conviction and sentence. His appeal was dismissed. These are the reasons why.
A. THE CONVICTION APPEAL
[2] The following are the grounds of the conviction appeal.
1. Did the trial judge err in finding no violation of s. 8 of the Charter?
[3] Before dealing with the merits of this ground of appeal, the issue of the missing transcript of the trial judge’s reasons for denying leave to cross-examine the affiant must be addressed. Notes of the trial judge’s reasons and the materials filed on the motion were made a part of the appeal record.
[4] Generally, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal, before a gap in the trial record needs to be meaningfully addressed by an appellate court: R. v. Hayes, 1989 CanLII 108 (SCC), [1989] 1 S.C.R. 44, at p. 48.
[5] The appellant has not shown either. Leave to cross-examine on a Garafoli application is discretionary: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 3, 30-31 and 40. In the case at bar, the basis for which leave was sought was the affiant’s belief that people keep data storage devices for a significant period. The appellant submitted that cross-examination of the affiant would have assisted in undermining this belief. However, the primary facts upon which this belief was based were not contested. Here, the fact was that the data storage device the police were seeking had uploaded child pornography some six months earlier. The appellant’s quarrel was with the inferences the affiant drew from the primary facts; that the data storage device would still be at the residence. This inference made by the affiant was based on information apparent on the face of the ITO. In such instances, it was reasonable for the reviewing judge to conclude that no basis was shown that cross-examination of the affiant could elicit evidence tending to discredit the grounds for the issuance of the warrant. Complaints about an affiant’s inferences afford no basis for cross-examination: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 85.
[6] Turning to the substantive objections to the Charter ruling, there is no merit to the appellant’s submission that the trial judge only dealt with the issue of staleness and failed to address other challenges made to the search warrant. The trial judge explicitly recognized in his decision that the s. 8 argument was not limited to the issue of staleness and dealt with other matters such as the overbreadth of the search warrant.
[7] On the appeal, the appellant essentially mirrors the argument made before the trial judge. However, the appellant has not shown that the decision was infected by legal error, any misapprehension of the evidence, or failure to consider relevant evidence: R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at para. 19. In my opinion, deference to the comprehensive decision of the trial judge is warranted.
[8] The appellant re-argues that the ITO fails to disclose any pattern of conduct or other information to provide reasonable and probable grounds that evidence of child pornography offences would remain on the computer six months from the date a child pornography image was uploaded from the computer to a Bing search engine.
[9] This attack was rejected by the trial judge who was entitled to draw reasonable inferences from the information set out in the ITO: R. v. Nero, 2016 ONCA 160, 345 O.A.C. 282, at para. 71. When it came to the issue of staleness of the information in the ITO, the trial judge admirably distinguished the circumstances in the ITO where the police were seeking a search warrant for evidence of child pornography on digital devices as compared to “consumable” evidence such as illegal drugs. He recognized that the question to be considered was not whether the search would lead to the discovery of the actual uploaded child pornography image six months earlier, but appropriately observed it was whether the search would afford evidence of the relevant offences. It is a reasonable, common-sense inference that digital devices like computers will be found in a residence after the elapse of a period of time such as six months and that the examination of their contents would afford evidence of the listed offences. As the respondent pointed out, the scenario depicted in the ITO is far removed from one where the police seek a search warrant for such devices many years later when the issue of staleness may make the inference unreasonable.
[10] Additionally, the appellant submits that it was unreasonable to infer that the child pornography was uploaded from a device at the appellant’s residence since there was no evidence that the wi-fi in his residence was password protected. In other words, the ITO did not exclude the possibility that someone else uploaded the image by using the appellant’s wi-fi without his consent. In my view, this possibility does not dilute the reasonable inference available to the issuing justice that the subscriber of the wi-fi network used it to upload the image, to the point where it becomes mere speculation. Indeed, that a subscriber of a wi-fi network was the one who used it, is a natural and compelling inference to draw.
[11] In the end, the trial judge stated the following (at para. 77):
I have concluded that the ITO contained sufficient reliable information upon which the issuing justice, acting judicially, could conclude that there was a credibly-based probability that evidence of the offences of possess and access child pornography would be found at the Applicant’s residence in July 2020. To summarize, in support of that conclusion I rely on the following:
The image that was uploaded on January 1, 2020, clearly depicted child pornography.
A digital file containing child pornography, unlike illegal drugs, is not transitory or consumable.
There was information in the ITO that deleted files and file fragments may exist on a computer system for “months or years” and evidence of this nature can be retrieved by computer forensic investigators.
The image was uploaded, not downloaded or merely accessed.
The image was uploaded to an online search service “that provides similar images to an image provided by the user.”
There was evidence that the Applicant lived at unit 326, 35 Brian Peck Crescent, when the files were uploaded and continued to live there when the search warrant was obtained.
[12] I agree with the trial judge. There is no merit to this ground of appeal.
2. Was the verdict unreasonable?
[13] The appellant argues the verdict was unreasonable on two bases.
Failure to prove jurisdiction
[14] The appellant submits that the Crown failed to prove as an essential element of the offence the jurisdiction of the court. Given that the appellant specifically did not admit jurisdiction as indicated by the judicial pre-trial notes, he argues that the Crown’s failure to prove jurisdiction is fatal to the verdict.
[15] I do not accept this submission.
[16] First, this matter is being raised for the first time on appeal. It was never raised at trial. While the rule against raising matters for the first time on appeal is not unyielding, the general injunction on hearing new issues on appeal has special application to issues about a court’s jurisdiction. The appellant should have raised the jurisdictional objection before the trial judge. A failure to make an admission is not the equivalent of making the required offer of proof to put jurisdiction into play: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 170, 181. While the Crown does not argue it has suffered any prejudice, it can easily be conceived how such a failure to object could work an injustice to the Crown. Coupled with this, no explanation has been offered on appeal as to why the objection was not taken at trial and as noted in Shafia, there is always the possibility that the issue is first raised on appeal because the litigant is unhappy with the result at trial: at para. 256. I would dismiss this aspect of the appeal on the basis that jurisdiction was not properly objected to before the trial court and is being first raised on appeal.
[17] Second, and in the alternative, I find there to be no merit to this ground of appeal. Contrary to the appellant’s position, jurisdiction is not an essential element of the offence but a question of law to be determined on the jurisdictional facts: R. c. G.L., 2023 ONCA 750 at para. 28; R. v. Minot, 2011 NLCA 7, 266 C.C.C. (3d) 74, at paras. 23, 27; R. v. M. E-H., 2015 BCCA 54, 319 C.C.C. (3d) 352, at paras. 23-31. The test that must be met is whether there is a real and substantial connection between the offence and the jurisdiction of the court: G.L., at paras. 30-33. The appellant submits there is no connection since the computer used to access the child pornography was portable and could have been used anywhere. This submission is unpersuasive. The real and substantial connection is met on the evidence before the trial judge. Not only was the computer seized at the appellant’s Ontario residence, but the trial judge also found that the appellant accessed child pornography on May 26, 2020, when he was home sick from work as revealed by his text messages. This firmly grounded the court’s jurisdiction: see R. v. Shokouh, 2022 ONSC 1574, at paras. 56-61.
An unreasonable verdict
[18] Recently, in R. v. Firlotte, 2023 ONCA 854, at paras. 26 and 28, the Ontario Court of Appeal described the test for assessing the reasonableness of a verdict in a circumstantial case:
In assessing this ground of appeal the court must determine whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered on any reasonable view of the evidence. The appellate court is required to review and analyze the totality of the evidence within the limits of appellate disadvantage. Where the Crown’s case is circumstantial, the question is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman, at para. 55. Appellate review must focus on the totality of the evidence – individual items of evidence “are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone”: R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Wu, 2017 ONCA 620 at para. 15.
The question here is not whether there was an available alternative inference, but whether the verdict is supportable on any reasonable view of the evidence.
[19] In arguing that the verdict was unreasonable, the appellant submits that the trial judge reversed the onus of proof, engaged in speculation, and ignored exculpatory evidence. I find that he did none of these things.
[20] In setting out the evidence and his reasons for finding the offence was proven beyond a reasonable doubt, the trial judge pointed out that no evidence was brought to suggest that anyone other than the appellant had access to the computer, and that no accounts belonging to anyone other than the appellant were connected to the computer. In saying that, the trial judge was not shifting the onus of proof onto the defence. Rather, he was simply observing the state of the evidence he was called upon to assess in determining whether the alternative theory that someone other than the appellant had accessed the child pornography was plausible. He committed no reversible error in that analysis.
[21] Nor did the trial judge engage in speculation. For example, when D.C. Peters determined that some of the websites that had been visited by a user of the seized computer on May 26, 2020, were not functional at the time of the officer’s investigation, the trial judge reasoned this did not mean the websites were not functioning on May 26, 2020. This was just a common-sense inference that any trier of fact could make based upon lived experience.
[22] Other arguments raised on the appeal are merely the same ones that were argued before the trial judge and rejected by him. Finally, it does not amount to an error that the trial judge did not address all aspects of the evidence in his decision, including exculpatory evidence.
[23] It is clear from his decision that the trial judge grappled with the key issues and evidence in the case, including the fact there was no password on the computer, in coming to his findings of fact and his determination that the Crown had proven all the essential elements of the offence.
[24] Looking at the whole of the evidence, the verdict rendered was reasonable. There was a reasonable pathway to conviction. The seized computer that accessed the child pornography was in the kitchen of a one-bedroom apartment. The appellant’s identification was found in the apartment. There was no evidence suggesting anyone other than the appellant lived there. From the computer, the user accessed several accounts including email and Instagram in the appellant’s name but no accounts in anyone else’s name. Two thousand and five hundred unique images of child pornography existed in the computer’s unallocated space. The computer conducted multiple web searches containing child pornography terms and visited websites with URL names containing child pornography terms on May 26, 2020, when the appellant was home sick. D.C. Peter’s review of the websites visited by the user of the computer on May 26, 2020, and July 13, 2020, contained child pornography forums and one contained links to child pornography. On May 26, 2020, the user of the computer visited websites with URL titles containing “dad’s girl” and the computer contained an image of child pornography with the writing “dad’s girl” on it.
[25] Looking at the evidence cumulatively and holistically, it cannot be said that guilty verdict reached by the trial judge was unreasonable: R. v. Gaetan, 2023 ONCA 114, at para. 63.
[26] The theory that someone else (like a visitor to the apartment) accessed the child pornography or that an unknown computer virus accessed the child pornography was largely based on conjecture and refuted by the evidence. In assessing whether the verdict was unreasonable, I have also considered the fact that the appellant did not testify to give any alternative explanation for the 2,500 images of child pornography that were found in the unallocated space of the computer or for the searches and sites visited: R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at para. 141.
[27] This ground of appeal is dismissed.
B. THE SENTENCE APPEAL
[28] Sentencing decisions are afforded considerable deference on appeal: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44.
[29] Regarding the sentence appeal, I find that the trial judge committed no error and the sentence of six months is not manifestly unfit.
[30] The appellant submits that the sentencing judge gave little or no consideration to the various mitigating factors including the psychiatric report of Dr. Bradford who opined that Mr. Treloar was a low risk for any child pornography recidivism. I disagree. The trial judge referred to Dr. Bradford’s report at length and noted the other mitigating factors. Moreover, the collateral consequences of any sentence were expressly taken into consideration.
[31] In addition, the appellant argues that the trial judge erred by treating the number of images as an aggravating factor given that the trial judge was unable to determine the exact number of child pornography images that were accessed by Mr. Treloar during the 12-month boundary for the summary conviction offence. I find that the trial judge committed no such error. He specifically did not mention the number of images as an aggravating factor.
[32] While I queried whether given the trial judge’s uncertainty about the exact number of images accessed, he could treat the nature of the images accessed as an aggravating factor. I have concluded that it remained open to the trial judge to do so. Clearly, while he could not determine the exact number, he determined that more than the small number of images the appellant now contends, were in fact accessed in the relevant period. Based on his findings at trial and the representative sample of images presented to him, the trial judge did not fall into error in treating this as an aggravating factor.
[33] In terms of assessing the gravity of the offence and the need for deterrence and denunciation, while the appellant attempts to distinguish the actions of accessing as opposed to possessing child pornography, the harms as identified in the authorities apply equally to both types of offences. I see little meaningful distinction between the two offences in terms of the gravity of the offence.
[34] The appellant had argued for a conditional sentence. This was rejected by the trial judge. I see no fault in his reasons. Due deference should be afforded. Indeed, given recent appellate decisions post-Friesen dealing with child pornography sentences, the six-month sentence is unassailable: R. v. M.M., 2022 ONCA 441; R. v. M.V., 2023 ONCA 724.
[35] The sentence appeal is dismissed.
Justice S. Nakatsuru
Released: February 7, 2024