



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Midwinter, 2015 ONCA 150

DATE: 20150309

DOCKET: C57805

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Midwinter

Appellant

Antal Bakaity, for the appellant

Melissa Adams, for the respondent

Heard: February 20, 2015

On appeal from the conviction entered on August 14, 2013
    by Justice Kofi N. Barnes of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant, Andrew Midwinter, was charged with one count of
    possessing child pornography and one count of accessing child pornography
    contrary to sections 163.1(4) and (4.1) of the
Criminal Code
. 
    Following a four-day trial, the appellant was convicted of possession of child
    pornography, but acquitted of accessing child pornography.

[2]

The appellant appeals his conviction primarily on the basis that the
    trial judge failed to analyze whether he had knowledge of the nature of the
    images contained in a folder entitled Movies, which had been deleted from his
    basement computer.

Summary of the facts

[3]

In the spring of 2009, the appellant became embroiled in a bitter
    custody dispute with his former wife, Wendy Midwinter, and her then husband,
    Stephen Shapcott.  The custody dispute concerned Adriana Midwinter, the
    daughter of the appellant and Wendy who, at that time, was living with Wendy
    and Stephen.

[4]

In June 2009, Stephen and Wendy provided an anonymous tip to the police
    alleging that the appellant possessed child pornography.  That month the police
    went to the appellants residence to investigate the tip, but they found no one
    at home.

[5]

On September 15, 2009, the police returned to the residence.  Rose
    Midwinter, the appellants wife, was home.  The police told her that they
    wanted to speak to the appellant about an old break and enter event in the
    neighborhood which they were investigating.  Rose phoned the appellant who, in
    turn, contacted the police.  The appellant agreed to meet the police at his home
    the next day, September 16, 2009.

[6]

When the police arrived at the Midwinter home on the morning of the
    16th, they told the appellant that they were investigating allegations of
    possession of child pornography.  The appellant consented to the removal of all
    computers and hardware drives from his home so that the police could search
    them for images of child pornography.  As a result of that search, the police
    discovered images of child pornography on a computer kept in the basement of the
    appellants home and for which he was the primary, but not exclusive, user.

[7]

The trial proceeded, in part, based on an Agreed Statement of Facts
    which set out the consensus findings of the parties respective computer
    forensic experts.  The appellant did not testify.

[8]

The trial judge rejected the defence theory that the appellant had been
    the victim of a conspiracy amongst Stephen Shapcott, Wendy Midwinter and Trisha
    Dorman, an older daughter of Wendy by another marriage, to plant child
    pornography on the appellants basement computer in order to distract him from
    the custody battle over Adriana.

[9]

The Agreed Statement of Facts stipulated that a folder on the
    appellants basement computer hard drive entitled Movies had contained 781
    total images of child pornography and 167 movies of child pornography. Some
    of the movies and images were found within various sub-folders within the
    Movies folder.  Approximately 2,400 total images of child pornography were
    found in other locations on the hard drive.

[10]

It
    was also agreed that on the evening of September 15, 2009, the Movies folder,
    and all of the folders and files within it, had been deleted from the hard
    drive using a program called WipeDisk.  The Agreed Statement of Facts contained
    a detailed chronology of the efforts undertaken by a user of the computer
    between 7:14 p.m. and 11:26 p.m. on the evening of September 15, 2009, to
    search for and download from the Internet several wipe drive software
    programs and to run the wipe drive program against the first partition on Hard Drive
    No. 1 on the basement computer.  That partition contained the Movies folder.

[11]

The
    trial judge concluded that the appellant had deleted the Movies folder on the
    evening of September 15, 2009 and he had knowledge and control of the Movies
    folder.  The trial judge was satisfied that the Crown had proved possession of
    child pornography beyond a reasonable doubt.

Analysis

[12]

To
    establish personal possession for the purposes of s. 4(3) of the
Criminal
    Code
, the Crown must establish that the accused had both control over and
    knowledge of the thing:
R. v. Morelli
, 2010 SCC 8, at para. 15. 
    Control refers to power or authority over the thing, whether exercised or not:
R.
    v. Chalk
, 2007 ONCA 815, 88 O.R. (3d) 448 (C.A.), at para. 19.

[13]

In
    the context of data contained in an electronic file, in order to commit the
    offence of possession of child pornography, one must knowingly acquire the
    underlying data files and store them in a place under ones control:
Morelli
,
    at para. 66.

[14]

The
    requirement of knowledge encompasses two elements: the accused must be aware
    that he had physical custody of the thing in question and must be aware of what
    the thing is:
Morelli
, at para. 16.  Possession requires knowledge of
    the criminal character of the item in issue:
Chalk
, at para. 18.  Where
    the material in question reposes in an electronic file, the  court may draw
    inferences about an accuseds knowledge from circumstantial indicators such as
    ownership, access to, and usage of the computers on which the files are stored:
R. v. Braudy
, [2009] O.J. No. 347 (S.C.J.), at para. 52.

[15]

The
    appellant submits that the trial judge misapprehended the evidence by fixing
    him with knowledge that images contained in the deleted Movies folder on his
    basement computer were child pornography.  He further submits that there was
    absolutely no evidence that he had viewed, downloaded or organized the graphic
    content on the basement computer.

[16]

We
    do not accept these submissions.

[17]

The
    trial judge correctly instructed himself on the relevant legal principles
    relating to possession for the purposes of
Criminal Code
s. 4(3).

[18]

The
    Agreed Statement of Facts stated that pornographic images were organized into
    folders and sub-files and that the sub-folders within the Movies folder in
    which the 781 total images were found bore titles which included the words
    sexy child.  The findings of fact made by the trial judge in his reasons,
    based upon the Agreed Statement of Facts and the evidence led at trial, included
    the following:


(i)

The prohibited images found on the basement computer were child
    pornography;


(ii)

The appellant was the owner and the primary user of the basement
    computer, but multiple other users also had access;


(iii)

There was no evidence of any remote access to the basement computer;


(iv)

The theory that Wendy Midwinter and Trisha Dorman conspired to plant the
    child pornography images on the appellants basement computer was speculative
    at best;


(v)

It was illogical to expect those alleged conspirators would wipe out
    that which they had allegedly planted for the police to discover in the first
    place; and,


(vi)

The appellant deleted the Movies folder on the evening of September 15,
    2009, after learning that the police would visit his home the following day to
    talk with him.

After finding that the appellant had deleted the Movies
    file, the trial judge reached the following conclusion:

To do so, Mr. Midwinter had knowledge and control of the
    Movie file.  He had to know it was there to seek it.  He had to be able to
    control it to make the decision to delete it.

This court is satisfied that the Crown has proved the element
    of possession of child pornography beyond a reasonable doubt.

[19]

That
    the appellant knew the criminal nature of the images in the Movies folder was
    necessarily implicit in the trial judges conclusion that he had to know it
    was there to seek it, so that he could delete the images in the Movies folder
    before the police paid him a visit the following morning.  That was a logical
    inference for the trial judge to draw from the Agreed Statement of Facts and
    the other facts which he found.  We see no error in the trial judges reasoning
    or the conclusion which he reached on that point.

[20]

Finally,
    the appellant submits that his conviction on the count of possession of child
    pornography was inconsistent with his acquittal on the count of accessing child
    pornography.  We see no merit in this submission.  As the trial judges reasons
    disclose, the appellants acquittal on the accessing count was based on his
    assessment of the evidence regarding cached files resulting from Internet
    searches.  It was in that context that the possibility of other users of the
    computer to conduct Internet searches raised a reasonable doubt.  By contrast,
    the appellants conviction on the possession count was based on the evidence
    about the Movies folder stored on the computers hard drive and the trial judges
    conclusion that the appellant was the only person who enjoyed the opportunity
    to delete it in advance of the police visit.  There was no inconsistency
    between the two results.

[21]

For
    these reasons, the appeal is dismissed.

E.E. Gillese J.A.

David
    Watt J.A.

David
    Brown J.A.


