



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tweedle, 2016 ONCA 983

DATE: 20161229

DOCKET: C59865

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Tweedle

Appellant

Jennifer Trehearne and Kimberly Lederri, for the
    appellant

Michael Fawcett, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on July 3, 2014 and
    the sentence imposed on December 12, 2014 by Justice Mary Teresa E. Devlin of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for possession of child
    pornography and making child pornography available. He also seeks to appeal his
    sentence of 20 months imprisonment.

[2]

The appellant was arrested after an undercover agent identified online
    activities suggesting that the appellant was sharing child pornography on a
    peer-to-peer software program. The police executed a search warrant on the
    appellants home and seized two laptops, a Samsung and a Toshiba, and two
    external hard drives. They were forensically examined and disclosed 29 videos
    and 431 pictures of child pornography as well as chat logs from a Yahoo
    account, in which someone whose username was sometimes listed as Ian T discussed
    his strong interest in child pornography and abusing children.

[3]

The only issue at trial was whether the images of child pornography were
    on the appellants devices with his knowledge and control. The appellant
    testified that he had downloaded and shared with others thousands of files of
    adult pornography. He had also created a file into which others could transfer pornography
    remotely, enabling the sender to choose the pornography he would receive. The
    appellant denied being interested in or knowingly downloading or receiving
    child pornography. He claimed that he had received child pornography from
    others but as soon as he realized what it was, he deleted it and blocked the
    sender. He described in detail four occasions when this had happened. The appellant
    also denied participating in the chat log conversation. Although his email address
    was similar, he denied having a Yahoo account.

[4]

The trial judge accepted the appellants evidence that on approximately
    four occasions he received child pornography that he had deleted, and that he
    took steps to block the suspected sources of the materials. Indeed, the
    forensic analysis supported that most of the child pornography on one laptop
    and its external hard drive had been deleted.

[5]

The trial judge, however, did not accept that the appellant had received
    child pornography on only four occasions. Based on the forensic analysis, a
    considerable amount of child pornography remained and had not been deleted, in
    particular on the external hard drive for the Samsung laptop. The trial judge
    rejected the appellants evidence that he never had a Yahoo account. This
    conclusion was based on the location of the chats and their subject matter,  which
    was consistent with the type of chats the appellant admitted he engaged in. In
    any event, irrespective of who owned the Yahoo account, its contents (which
    included child pornography) were meticulously organized on the appellants
    computer.

[6]

The trial judge rejected the defence of innocent possession, namely that
    the appellant intended to delete any child pornography that had ended up on his
    devices without his knowledge. She referred to the substantial quantity of
    child pornography located in three separate places, the sophisticated
    organization of the material, the explicit names of the files, which would have
    alerted the appellant to their contents even if he did not view the files, and
    the fact that most if not all the child pornography on the appellants Samsung
    computer and external hard drive had not been deleted.

[7]

The trial judge also concluded that the offence of distributing child
    pornography was made out. The appellant purchased and used a file sharing
    program, GigaTribe, that required users to determine what material is shared.
    He knew he was storing child pornography on his computer and there was no
    evidence he took steps to block the sharing of files containing child
    pornography.

[8]

There are three grounds on the conviction appeal.

[9]

First, the appellant says that the trial judge failed to apply the
    second branch of the test in
R. v.
W.(D.), [1991] 1 S.C.R. 742.
In particular, the appellant says that the trial judge, having accepted that
    the appellant had deleted child pornography and took steps to block the sender
    on four occasions, did not assess whether such evidence raised a reasonable
    doubt about the appellants knowledge of the child pornography found on his
    devices.

[10]

We do not give effect to this argument. The trial judge was alive to
    and recited the
W.(D.)
test in her reasons. She correctly stated that
    she was to consider the appellants evidence in the context of the evidence as
    a whole, and that she could accept some, none or all of a witnesss evidence. While
    she accepted the appellants evidence that he had taken steps on four occasions
    to delete some child pornography from his devices (which was supported by the
    forensic analysis that revealed that most of the child pornography on the
    Toshiba laptop and its external hard drive had been deleted), she did not
    accept the inference the appellant wanted her to draw, which was that the
    deletion of child pornography on four occasions meant that any child
    pornography remaining on his devices was there without his knowledge. There is
    no indication that the trial judge failed to consider whether such evidence
    raised a reasonable doubt. There was compelling evidence to support the trial
    judges conclusion regarding the appellants knowledge, including the significant
    volume of child pornography that remained on the appellants devices, his statement
    to the police that they would find child pornography on his computers when they
    were examined, and the careful indexing and organization of the child
    pornography collection on the devices.

[11]

Second, the appellant says that the trial judge misapprehended the
    evidence on two key points: first, when she said that most, if not all of the
    child pornography on the new external hard drive had not been deleted (when the
    evidence was simply that it was accessible), and second when she stated that
    the appellants evidence was that he had received child pornography on only
    four occasions. The appellant says that these were material misapprehensions
    that deprived him of a fair trial or, alternatively, constituted a miscarriage
    of justice. The appellant also says that the trial judge failed to consider
    certain evidence, including that the child pornography was found among hundreds
    of thousands of other files and the lack of evidence regarding whether the
    files containing child pornography had been accessed despite it being
    forensically possible for the Crown to prove this fact.

[12]

We disagree.

[13]

The trial judges conclusion that the majority of the images found on
    the Samsung device had not been deleted was consistent with the evidence that the
    majority of the images were accessible. The evidence distinguished between
    files that remained accessible and those that were only recoverable through
    forensic analysis. While the trial judge did not specifically acknowledge the
    forensic evidence that accessible files could include files that were in the
    recycle bin, the evidence was that the appellant understood the distinction and
    that moving files to the recycle bin did not in fact delete them.

[14]

The trial judge stated that she rejected the appellants evidence that
    he only obtained isolated images of child pornography and one video on the four
    occasions he had described (when he immediately deleted the images). We do not
    agree that this reflects a misunderstanding of the appellants evidence and
    defence, which was that he unknowingly received other images of child
    pornography that he had not yet discovered and deleted. She carefully
    considered the evidence, focusing on the appellants defence of innocent
    possession. In this regard, the evidence of the appellants careful indexing and
    organization of the materials on his hard drives was inconsistent with innocent
    possession.

[15]

We do not agree that the trial judge overlooked material evidence. In
    particular, she was aware that the child pornography represented a small
    percentage of the significant volume of pornography on the appellants devices.
    The fact that she refused to draw the inference the appellant sought to be
    drawn, that his real interest was in adult pornography and that the child
    pornography was there without his knowledge, does not mean that she ignored
    this evidence.

[16]

Third, the appellant argues that the reasons for judgment were
    insufficient. The focus, however, is on the specific points previously addressed
     that the trial judge failed to explain why the alleged contradiction between her
    acceptance of the appellant having deleted child pornography on certain
    occasions and her subsequent finding that the appellant knowingly possessed
    child pornography did not leave her with a reasonable doubt, and why she did
    not have a reasonable doubt based on the forensic evidence (or lack thereof).

[17]

We disagree. The reasons for judgment clearly explained why the
    appellant was found guilty and convicted of the offence charged. This was an
    overwhelming case for the Crown. In dismissing the appellants innocent
    possession defence, the trial judge clearly explained her reliance on the
    sophisticated organization of the material, the explicit names of the files,
    and the fact that most of the child pornography had not been deleted. She also referred
    to the fact that the contents of the Yahoo account, which included child
    pornography, were stored and meticulously organized on the appellants
    computer, whether or not the Yahoo account belonged to him.

[18]

The conviction appeal is accordingly dismissed.

[19]

The appellant raises two arguments on his sentence appeal. First, he
    says that the trial judge erred in finding that the amount of child pornography
    was an aggravating factor when she failed to distinguish between the number of
    unique items of child pornography on the appellants devices (137 images and 22
    videos) versus the total amount of child pornography (29 videos and 431 images)
    that includes duplicates appearing on more than one device. Second, the
    appellant says that the trial judge erred in characterizing the fact that the
    pornography was distributed on multiple occasions to multiple users as an
    extremely aggravating factor in the absence of specific evidence as to the
    number of times the appellant had shared child pornography with others.

[20]

While we grant leave to appeal sentence, we dismiss the sentence appeal.

[21]

There was no error in the trial judges approach to sentencing in this
    case. The appellants counsel at trial did not distinguish between the number
    of images on the appellants devices that were unique and how many were copies,
    and how that might reflect on the appellants culpability. Whether the
    appellants collection consisted of unique or duplicate images, it was
    substantial and contained horrific images of abuse of children of all ages. Further,
    while there was no specific evidence as to the number of occasions on which the
    appellant shared child pornography files, the conclusion that he had
    distributed child pornography on multiple occasions to multiple users was
    apparent from his participation in a file sharing program, with no evidence that
    he had blocked the sharing of files containing child pornography.

[22]

The mandatory minimum sentence for this offence was one year
    imprisonment. The reformatory sentence here of 20 months was well within the
    appropriate range, took into account the relevant mitigating and aggravating
    factors, and was not demonstrably unfit.

Janet
    Simmons J.A.

K.
    van Rensburg J.A.

B.W.
    Miller J.A.


