Crown: C. Vandenbroek, Office of the Crown Attorney, Brampton
Defence: Craig Penney and Lucas Rebick, Toronto Criminal Defence Lawyers
¶ 1 THE COURT: Mr. X.Z. (accused) is charged with possessing, importing, and accessing child pornography. Two videos of child pornography were discovered in the laptop of the accused by Border Services Officer (BSO) Salih during it secondary examination on August 20th, 2011. The accused had arrived from China.
¶ 2 An application to exclude any statements made by the accused to BSO Salih was dismissed on October 19, 2012. Defence counsel further submit that the accused's compelled participation in the search of his computer by BSO Salih and the statements he provided to the officer should not be introduced at this trial. I dismiss this application and my brief reasons for dismissing this application follow my decision on the merits of the case.
¶ 3 Counsel agreed to proceed by way of a blended voir dire. Counsel agree that the testimony of all Border Services Officers (BSO Salih, BSO Samra, and BSO Paredes) given on the Charter voir dire is properly admissible at trial.
¶ 4 The accused did not testify at trial. However, on consent, the accused's interview with Constable (Cst.) Mitchell has been admitted at trial.
¶ 5 A number of other Crown witnesses testified as to their involvement with the accused and the examination of the laptop. I do not propose on repeating or summarizing the evidence of each Crown witness. In my view, the evidence that is relevant for explaining the conclusion I have reached as to the accused's innocence or guilt is that of BSO Salih, Cst. Mitchell and Cst. Duquette, who was qualified as an expert.
a. The Evidence of BSO Salih
¶ 6 The accused arrived at Pearson International Airport from China at 4:00 p.m. - August 20, 2011. BSO Paredes referred the accused for a secondary examination. BSO Salih conducted the secondary examination and he obtained the accused's date of birth, name and the flight number. He testified that the secondary examination started at 5:35 p.m., and he asked ownership questions to confirm that the goods the accused was carrying belonged to him. He testified that the accused had personal luggage, gifts from China, a laptop, a USB and an external hard drive. The accused confirmed ownership of the laptop and confirmed that he was aware of the contents.
¶ 7 After conducting a baggage examination, BSO Salih then examined the contents of the laptop for hate propaganda material, fraudulent documents relating to immigration and obscene material. He testified that he asked the accused if he had pornography on the laptop and that he explained to the accused what kind of pornography he was looking for: "So after that, I explained to him what kind of pornographic material would be of concern for customs purposes. So I said things like obscene material, and I -- I asked him, do you need an explanation of that? He said, no, I think I know what you -- what kind of pornography is a problem -- what kind of pornography would be a problem, was what he said. And then, at that point, I said, can you help direct me to where your -- where you would store your pornographic material? And then that's when he assisted me in so I had control of the computer with the mouse in my hand and I would ask him, where do I go to get to wherever he stores his pornographic material, because for me to go and kind of just look everywhere for someone's kind of content would take long periods of time."
¶ 8 In cross examination, BSO Salih clarified what he meant by obscene material. He testified: "Some people would know what the terms obscene means, some people wouldn't. So obscene material would be like videos of bestiality. Some people would know what bestiality is, or -- or give them example of what bestiality is. You know, human animal sexual interaction. And then, of course, there's child pornography and pretty much everybody -- from my experience, most people know what child pornography is so you don't really have to really give an example of it. And -- and then just go from there, at that point."
¶ 9 BSO Salih testified that the accused directed him to his pornography by using the following file path: My Computer/New Volume/D:/Games/War 3/[Mandarin characters]/Movi/[Mandarin characters].
¶ 10 BSO Salih testified that the accused stopped him at this point and that he observed other folders but one was called "CRIME" and he felt that this folder warranted further investigation.
¶ 11 In the CRIME folder, BSO Salih opened up a video "YY010" and he saw a female child who appeared to be between 8 to 10 years old touching her vagina.
¶ 12 BSO Salih paused this video, minimized the image and then opened up another video "YY026". He testified that he saw a male between 30 to 40 years old assisting a dog performing oral sex on a female child who appeared to be between 10 to 12 years of age. He then arrested the accused for importation of child pornography under the Customs Act. The time of arrest was at 6:05 p.m. and the accused was eventually turned over to the Peel Regional Police for processing under the Criminal Code.
¶ 13 BSO Salih testified that while he was searching the laptop he spoke to the accused. He testified that once he got to the CRIME folder the accused immediately stated "I was meaning to get rid of those videos. It was just, I always got busy and never get a chance. I know it's bad, but my friend gave them to me." He testified that this was a verbatim quote that he noted in his notes.
¶ 14 He further testified that the accused told him the CRIME folder was provided to the accused two years ago from Jin Hailong in China. He acknowledged that this statement was not "verbatim". He then asked the accused if he could provide him with details relating to Jin Hailong but the accused was not able to provide an address, an email or a phone number, only that he lived in Shenyang, China.
¶ 15 It is unclear where the accused was situated when BSO Salih opened up the CRIME folder. BSO Salih was not asked what the accused was doing when the CRIME folder was opened or what the accused was doing when BSO Salih watched the videos of child pornography in the CRIME folder.
¶ 16 BSO Salih testified that there were only 24 videos in the CRIME folder but that he only looked at the two videos. However, in cross examination he acknowledged he may have opened up other files in the CRIME folder.
¶ 17 Furthermore, BSO Salih acknowledged that there might have been other files that he might have opened that did not contain child pornography but he did not make notation of these files. In cross examination, he testified, for the first time, that he may also have watched a video of a male urinating onto the vaginal area of a female. This video was located at New Volume/D:/Games/War 3/[Mandarin characters]/www.sex in sex.net.
¶ 18 After arresting the accused, BSO Salih turned the accused over to Cst. Velikov who had responded on behalf of the Peel Regional Police.
¶ 19 The laptop, USB device and the external hard drive were seized and examined by the Peel Regional Police. There is no issue as to the search of these devices and the laptop. Defence counsel conceded for the purpose of this trial that the laptop contained the following:
* 5,540 movie file names;
* 3,341 "live file movies";6 and
* 515,582 images.
¶ 20 Defence counsel also conceded that the 20 videos tendered by the Crown in this prosecution met the definition of child pornography in the Criminal Code.
c. The Evidence of Constable (Cst.) Chad Mitchell
¶ 21 Cst. Mitchell testified that he examined the accused's laptop when it was seized. He conducted a comprehensive search of the laptop and that when looking at the images and the movies on the laptop he was not categorizing adult pornography or obscenity. He recalled that there was adult pornography on the laptop.
¶ 22 He classified 20 videos on the laptop as constituting child pornography. These videos were all located in the CRIME folder. In total there were 24 videos in the CRIME folder.
¶ 23 He described the contents of the other four videos in the CRIME folder:
A. [T]he first one was titled YY008 period RM. And I had a cursory review of the video based on time. It was 21 minutes in length, 21 minutes, 7 seconds in length. And the video depicted a -- a female naked with the exception of garters, and she was engaged in sex acts with two males and her age was difficult to determine based on her sexual maturation. I would estimate that her age is mid teens to late teens.
Q. But you can't say?
A. I did not classify this as child pornography.
Q. Fair. The next?
A. The title of the video was YYO15 period RM ...
A. 5 minutes and 12 seconds in length. And this video depicted a female in various states of undress. Again, the age was difficult to determine, mid - mid to late teens is my estimation only, and I did not classify this as child pornography. There were no sex acts involved in the video.
A. The next video was titled YY016. The RM extension again. It was 11 minutes and 58 seconds in length. The video depicted a naked female. At times she was posing on a piano and her age was also difficult to determine. I did not classify this as child pornography.
Q. Was she a younger or older or ...
A. Mid, the same . .
Q. Mid to late teens?
A. mid to mid to late teens.
A. The video was titled YYO22 dash or a period RM. It was 10 minutes and 18 seconds in length, And the video depicted a naked female masturbating. Her age I estimate to be mid to late teens, and I did not classify this as child pornography.7
¶ 24 He testified that the other 20 videos depicted prepubescent females involved in either sex acts with adult males or modelling type videos in which their genitals at times were the dominant characteristic of that video. He could not provide an estimate of how many videos involved sex acts with adult males or what sex acts they were, in fact, performing.
¶ 25 He testified that there were no images or movies of child pornography on the USB, or the external hard drive.
¶ 26 Cst. Mitchell was unable to provide information as to how many images of adult pornography or how many adult pornographic movies there were on all devices.
¶ 27 He testified that he reviewed a total of 3,341 movies and that the 20 videos he found in the CRIME file were forwarded to Cst. Duquette for analysis.d. The Interview of the Accused
¶ 28 On consent, the DVD of Cst. Mitchell's interview of the accused has been filed. I have watched the interview and carefully reviewed two transcripts that have also been filed for my assistance. There is some debate as to the accuracy of the transcripts. Two transcripts were prepared for this trial and the transcripts contain differences. The accused speaks English but he does so with a heavy Chinese accent. Some words are very difficult to make out during the interview.
¶ 29 For the most part the accused exercises his right not to say anything to Cst. Mitchell. He admits that the laptop is only used by him but that others have access to his computer. He asserts that other people watch television and listen to music on the laptop with him.
¶ 30 At one point during the interview, the Crown argues that the accused makes the following statement: "I, I did made a mistake, I made-, I, I made-, break the law".8
¶ 31 The Crown relies on a version of a transcript that discloses the word "made" before the phrase "break the law".
¶ 32 Mr. Rebick urges me to review the DVD and listen carefully to the interview and find that the accused did not say "made" but stated "may". According to the transcript that defence counsel has filed for my consideration the accused stated: "I did make the mistake, I may break the law but if I know I am a good person".9
¶ 33 I have reviewed this DVD carefully. After considering the matter, I agree with Mr. Rebick and find that the accused stated "may" as opposed to "made".
¶ 34 At another point in the interview, the accused asserts that child pornography is pornography involving children under 18. He also denies that he is sexually attracted to children and in response to Cst. Mitchell's revelation that there are videos of young girls being raped on the computer, the accused responds that in Japanese movies the "girl is always young and they always find a middle age, ugly guy".
¶ 35 When Cst. Mitchell confronts the accused and says that the girl he saw was about eight to ten years old, the accused's expression is one of shock. I have reviewed this portion of the video carefully and the shock appears genuine. The accused makes the following statement:
Q. Yeah. Yeah.
A. Okay, so we are talking, we are not talking about the same video.
A. I'm not gonna talk about those, those things. I, I, I, I was thinking you were asking me about the, the regular, the normal porn.
Q. Oh, okay.
A. C-, 'cause there's a, an [sic] video like that.
A. But I, I didn't, I didn't know, I, I think I need to make this clear.
A. I think I need to make this clear.
Q. To make it clear?
A. Yeah, make it. make it clear.
Q. What do you want to make clear?
A. I mean, we are not talking about the same video.
Q. Oh, fair enough. I understand.10
e. The Evidence of Constable (Cst.) Ryan Duquette
¶ 36 Cst. Duquette was qualified as an expert to give opinion evidence with respect to the identification of data, the preservation of data, collection of data and the analysis of data from computers and computer related equipment.
¶ 37 Cst. Duquette* examined a copy of the laptop's hard drive and the 20 videos sent to him by Cst. Mitchell. He testified that the movies were located on a partition of the hard drive of the laptop that was used for storage purposes only. He testified that the movies were in numerous folders and subfolders.
¶ 38 Cst. Duquette was cross examined extensively by Mr. Penney. He agreed with the suggestion. that a "file" on the laptop was made up of the following elements:
(iv) dates;12 and
¶ 39 In cross examination, Cst. Duquette agreed with the following:
* the laptop had been operating since either April 2009 or August of 2009;
* he did not know how these movie files were put on the laptop;
* he did not know how the movie files were created;
* he could not testify that the user of the laptop had, in fact, downloaded the movies onto the laptop;
* if the movies had been downloaded onto the laptop they would have been downloaded in bulk;
* copying in bulk from one source to another is a process of copying over a folder with its subfolders and all the files in the folders;
* there is no evidence that the 20 movie files in the CRIME folder were ever looked at by the user on the laptop;
* there was no indication that the user ever searched for the 20 movie files on the laptop;
* the CRIME folder was many levels down in the storage partition of the laptop and he could not testify as to how many other folders were associated with the CRIME subfolder, the Games subfolder, or the War 3 subfolder;
* he could not confirm if there were other files in the CRIME folder other than the 24 movie files;
* there was no indication that the laptop was used at any time in the previous 2 years prior to its seizure by the police to view child pornography on the Internet or to search for child pornography;
* the folder CRIME and the individual 20 files were not password protected;
* it appeared that the movies were downloaded in bulk and then never accessed by the user;
* that after the files were placed on the laptop there was no indication that they were ever used or accessed by the system;
* that the 20 movie files might have been buried five levels down a file path and mixed in with 500 other flies;
* if the user had copied them over, the user may not have had any idea of the content of the 20 movie files;
* it was not necessary for the user to see the CRIME folder to copy the tiles located within the folder onto the laptop.
III. LEGAL PRINCIPLES
¶ 40 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control.14
¶ 41 On the charge of importing, there are two elements that the Crown must prove: (i) an intention by the accused to bring the child pornography into the country; and (ii) knowledge of the existence of the child pornography.
¶ 42 Practically speaking, the sole issue here is one of "knowledge". I am mindful that the standard of proof beyond a reasonable doubt does not apply to individual pieces of evidence which comprise the Crown's case. Here, the Crown submits that I must be able to draw reasonable inferences from the accused's possession of the laptop and his statements to BSO Salih and Cst. Mitchell.
¶ 43 I remind myself that the process of drawing inferences from evidence is not, the same as speculating even where the circumstances permit an educated guess.15
¶ 44 With respect to the statements, I am entitled to use my common sense and experience but here the gap between the inference that the items that the accused was referring to in his statements to BSO Salih and Cst. Mitchell were the child pornography videos in the CRIME folder must be bridged by evidence. I am not satisfied that the Crown has met the heavy burden of convincing me beyond a reasonable doubt that the accused had knowledge of the videos in the CRIME folder. I reach this conclusion for several reasons.
¶ 45 First, it is unclear in BSO Salih's evidence as to the location of the accused when he uttered the statements about deleting the videos to BSO Salih. I am satisfied that the accused led BSO Salih to a folder that contained pornography. However, what happens after that is not clear on the evidence. BSO Salih testified that he opened the CRIME folder on his own and that when he was about to open the folder the accused told him he had been meaning to delete the videos because he knew they were bad. Without evidence as to his location when he said this, I cannot be satisfied that he was referring to the videos in the CRIME folder when he told BSO Salih that he had been meaning to delete the videos. There is evidence that the laptop contained other forms of pornography and there is evidence from BSO Salih that he may have looked at other forms of pornography on the laptop during his dealings with the accused.
¶ 46 Second, while BSO Salih testified that the accused mentioned something about receiving the CRIME folder from a man in China, I must take into account that this is not a verbatim quote that was noted by BSO Salih. The fact that the quote is not verbatim affects the reliability of this evidence and it certainly affects the weight of this evidence. Reliable and contemporaneous notes are integral to the administration of justice. The completeness and accuracy of BSO Salih's notes factor into the assessment of the reliability of this evidence. I have very little evidence as to the completeness and accuracy of this entry in his notes, BSO Salih admits the entry is not verbatim.
¶ 47 Third, it is not clear where the accused was located when BSO Salih actually viewed the child pornography on the computer. I am of the view that I cannot discount a competing inference that the accused may have been talking about other distasteful videos of pornography when he told BSO Salih that he was meaning to delete the movies because he knew they were bad. As BSO Salih noted in his testimony, he examined other movies and recalls viewing a rather distasteful movie of a male urinating on a female vagina. Furthermore, Cst. Mitchell testified that there were four other pornographic videos in the CRIME folder involving young girls but that he could not classify these videos as child pornography.
¶ 48 Fourth, I do not believe that the statement made to Cst. Mitchell "I know I made a mistake, I may have broken the law" bridges the gap. The statement is equivocal. When I look at his entire statement, the accused speaks about his knowledge of Japanese movies involving young girls and older men but stresses that they are not child pornography. When confronted that the movies that Cst. Mitchell was talking about involved the rape of a girl as young as 8 to 10, the accused appears to be in shock at the suggestion. I have carefully viewed the reaction of the accused and I believe that the appearance of shock is genuine. His assertion that he may have broken the law may be his belief that it was against the law to have possession of movies that were distasteful (such as the movie that BSO Salih described of a male urinating on a female vagina) or close to the line (the Japanese movies that he described in his statement involving young girls and older men).
¶ 49 Fifth, there is no evidence that the movies in the CRIME folder were ever accessed or used by the laptop's system.
¶ 50 Sixth, I am unable to determine on this record, how the movies got on the laptop, or when the movies were placed on the laptop.
¶ 51 Seventh, there is no evidence that the 20 movie files in the CRIME folder were ever looked at by the user on the laptop.
¶ 52 Eighth, there was no indication that the user ever searched for the 20 movie files on the laptop.
¶ 53 Ninth, there was no indication that the laptop was used at any time in the previous two years (prior to its seizure by the police) to view child pornography on the Internet or to search for child pornography.
¶ 54 There is an overwhelming temptation to conclude that because the accused had almost exclusive possession of his laptop when he entered into Canada, he must be guilty of the crime of possession and importing because there were the 20 child pornography videos in the CRIME folder. There is also a temptation to find the accused guilty of the offence because someone must be held accountable for the videos which are vile. However, cases cannot be decided on the basis of temptations or hunches. Cases must be decided on the basis of the evidence presented, and the inferences that may be reasonably drawn from the evidence,
¶ 55 As I have set out, I have some reservations as to whether the statements attributed to the accused to BSO Salih and Cst. Mitchell are capable of taking the whole of the evidence to the beyond-a-reasonable-doubt standard. When I consider the evidence of Cst. Duquette that there is no evidence that the 20 videos in the CRIME folder have ever been accessed by the system, and that these videos were downloaded in bulk and that a user may not know about the contents of the folders that are downloaded in bulk, I have a reasonable doubt as to whether the accused knew there was child pornography videos in the CRIME folder. I also take into account the evidence of Cst. Duquette that there was no evidence that the user accessed these videos or that the user was responsible for downloading the movies. Indeed, there is no evidence that the system has ever accessed the videos since they were put on the system. I have no evidence as to when the movies were even placed on the system.
¶ 56 On the basis of all of the evidence presented in this case, I acknowledge that there are some troubling admissions made by the accused. However, the most I can say about these statements is that I am suspicious that the accused may have known about the 20 videos in the CRIME folder. However, I am not satisfied of his guilt beyond a reasonable doubt. Notwithstanding the compelling and effective submissions of the Crown, at the end of the day, considering the evidence in its entirety, the evidence falls short of establishing importation and possession to the criminal standard.
¶ 57 The accused is found not guilty of all counts on the Information.
1. While the accused did testify on the Charter voir dire, I did not understand defence counsel to consent that this evidence could be considered on the trial. Therefore, I have not considered his very brief testimony or his affidavit filed in support of the application to exclude the evidence.
2. I also heard testimony from Cst. Velikov, Cst. Mitchell, Cst. Salih and Cst. Duquette.
3. I want to be very clear that I have considered all of the evidence at this trial and I have instructed myself that the Crown must prove all of the elements of the importing and possession counts beyond a reasonable doubt. The Crown conceded that the accessing count could not be made out on the evidence. I agree with that concession and I find the accused not guilty on that count.
4. Transcript of Proceedings, October 15, 2012, p. 46. Emphasis added.
5. Transcript of Proceedings, October 16, 2012, p. 25.
6. It was agreed by counsel that live movies refer to movies that are on the computer and not deleted.
7. Transcript of Proceedings, October 17, 2012, pp. 100-102.
8. Exhibit 1A, p. 12.
9. Exhibit C on Voir Dire, Tab 2G, p. 55.
10. See Exhibits 1A and C. Emphasis added.
11. Also known as a directory tree.
12. Including access date, modification date, creation date and deletion date.
13. For example, metadata could include the model of a camera used to create the picture including the exposure speed and other information associated with the picture.
14. See Beaver v. The Queen,  S.C.R. 531, at pp. 541-42; R. v. Morelli,  1 S.C.R. 253.
15. See United States of America v. Huynh,  O.J. No. 4074 (C.A.) at para. 7.
16. Indeed, Cst. Duquette agreed that the 20 files might have been buried, five levels down and mixed in with 500 other files when they were downloaded in bulk.
17. It would be open for the Crown to argue that the accused was wilfully blind to the existence of the videos if I accept that he was referring to the 20 CRIME videos when he told BSO Salih that he had been meaning to delete those. However, in my view, it is not clear what he was talking about and I do not find that it is open for me to consider wilful blindness in this case and on this record. There is no evidence how or when these 20 videos were placed onto the laptop.
18. I released an endorsement on March 25, 2013, announcing the result to the parties. That endorsement has been marked as Exhibit A. This judgment will he marked as Exhibit B.
19. See s. 11 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).
20. See R. v. White,  2 S.C.R. 417 at para. 89. With respect to the accused's "participation", I take counsel to mean that the accused's directions to the file path that led BSO Salih to the folder that contained the subfolder CRIME.
21.  O.J. No. 3315 (C.A.).
22. See R. v. Jones, supra, at paras. 13-16.
23. Ibid, at paras. 31, 32 and 37.
24. Emphasis added.
25. See R. v. Leask.  O.J. No. 329 (C.J.) at para. 18.