



WARNING

The President of the panel
hearing this appeal directs that the following should be attached to the file:

An order restricting
publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1)
or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)
Subject
to subsection (2), the presiding judge or justice may make an order directing
that any information that could identify the complainant or a witness shall not
be published in any document or broadcast or transmitted in any way, in
proceedings in respect of

(a)      any of the
following offences;

(i)       an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
347,

(ii)      an offence
under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
female), 156 (indecent assault on male) or 245 (common assault) or subsection
246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
Revised Statutes of Canada, 1970, as it read immediately before January 4,
1983, or

(iii)     an offence
under subsection 146(1) (sexual intercourse with a female under 14) or (2)
(sexual intercourse with a female between 14 and 16) or section 151 (seduction
of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
procuring defilement) or 167 (householder permitting defilement) of the
Criminal
Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
immediately before January 1, 1988; or

(b)      two
or more offences being dealt with in the same proceeding, at least one of which
is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
the presiding judge or justice shall

(a)      at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the complainant of the right to make an application for the order; and

(b)      on
application made by the complainant, the prosecutor or any such witness, make
the order.

(3)
In
proceedings in respect of an offence under section 163.1, a judge or justice
shall make an order directing that any information that could identify a
witness who is under the age of eighteen years, or any person who is the
subject of a representation, written material or a recording that constitutes
child pornography within the meaning of that section, shall not be published in
any document or broadcast or transmitted in any way.

(4)
An order
made under this section does not apply in respect of the disclosure of
information in the course of the administration of justice when it is not the
purpose of the disclosure to make the information known in the community. 2005,
c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1)
Every
person who fails to comply with an order made under subsection 486.4(1), (2) or
(3) or 486.5(1) or (2) is guilty of an offence punishable on summary
conviction.

(2)
For
greater certainty, an order referred to in subsection (1) applies to prohibit,
in relation to proceedings taken against any person who fails to comply with
the order, the publication in any document or the broadcasting or transmission
in any way of information that could identify a victim, witness or justice
system participant whose identity is protected by the order. 2005, c. 32, s.
15.







COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farmer,
2014 ONCA 823


DATE: 20141120

DOCKET: C57682

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Alexander Nathan Earle Farmer

Respondent

Suhail A.Q. Akhtar, for the appellant

Mark Halfyard, for the respondent

Heard: October 22, 2014

On appeal from the acquittal entered on August 29, 2013
by Justice
Wolfram Tausendfreund
of the Superior Court
of Justice, sitting without a jury.

Sharpe J.A.:

[1]

This is a Crown appeal from an acquittal following a judge alone trial
on charges of accessing and possession of child pornography.  The appeal raises
issues as to the meaning of control and wilful blindness in relation to the
offence of possession of child pornography.

[2]

The respondent and his partner, M.R., shared a basement apartment.  M.R.
downloaded child pornography on a computer owned by the respondent and used by
both men.  The respondent had no interest in child pornography and did not
access the material M.R. had downloaded.  His partner accepted responsibility,
admitted that he had downloaded the prohibited material, pleaded guilty and was
sentenced for both possession of and accessing child pornography.

[3]

The trial judge found that the respondent was at least suspicious that
M.R. had downloaded the prohibited material on the computer.  The trial judge
also found that the respondent condoned the use [M.R.] made of the computer and
that included accessing child pornography, an activity to which the [respondent]
was wilfully blind.  The trial judge recognized that a finding that the
respondent had control and knowledge on the basis of wilful blindness would
ordinarily result in conviction.  However, he remained troubled and acquitted
the respondent on the basis of the doctrine of innocent possession.

[4]

The Crown appeals the acquittal and asks this court to substitute a
conviction on the basis of the facts as found by the trial judge.

[5]

For the following reasons, I conclude that the trial judge committed
legal errors in his reasoning with respect to both wilful blindness and the
doctrine of innocent possession.  However, despite those errors, he reached the
legally correct result.  He was rightly troubled by the prospect of convicting
the respondent and I would dismiss the Crowns appeal.

FACTS

[6]

The respondent and M.R. lived together in a room in the home of the
respondents parents.  The respondent owned a desktop computer that both men
used.  M.R. owned a laptop computer that he used exclusively.  Both men worked,
but on different schedules. M.R. was often alone in the couples room.  He made
extensive use of the respondents computer.

[7]

M.R. had a diaper fetish which involved role-playing.  The respondent
participated a few times, but then refused to continue to do so.

[8]

The respondent admitted that on two occasions he saw M.R. looking at
images of teenaged boys dressed in underwear on the desktop computer. It is
common ground that these images were not child pornography.  He also stated
that sometimes when he returned to the room from work, M.R. would immediately
change the programme or minimize what was on the computer screen.

[9]

Acting on a warrant, the police seized both computers and charged both
men with accessing and possession of child pornography.

[10]

They
found a large number of images and videos depicting child pornography on the
desktop computer.  The files were stored in subfolders that were not readily
apparent or easily accessible, and there was evidence that the respondent was
not particularly computer literate.  The Crown relied upon statements made by
the respondent at the time of the seizure and after his arrest.  He told the
police that he knew, or at least had a good idea, that there might be child
pornography on his computer, but that he had not downloaded or accessed it and
had no interest in it. In a video statement, the respondent stated that he knew
M.R. accessed child pornography in relation to his diaper fetish, that he had
seen M.R. looking at images of teen males dressed in underwear on the desktop
computer, and that he had, in the words of the trial judge, then put two and
two together.

REASONS OF THE TRIAL JUDGE

[11]

The
trial judge made the following findings of fact:

1.

Child pornography found on the desktop computer was accessed by M.R.

2.

The desktop computer was the property of the respondent.

3.

Both the respondent and M.R. had free and unfettered access to the
desktop computer.

4.

The respondent had no interest in child pornography. He neither
downloaded nor accessed any of the child pornography found on the computer.

5.

The respondent was at least suspicious that child pornography had been
downloaded on his computer by M.R. but condoned it because M.R. was his partner
for whom he cared.

6.

The respondent took no steps to confirm his suspicion or to delete all
child pornographic images to prevent further access.

[12]

The
trial judge cited
R. v. Morelli
,
2010 SCC 8,

[2010] 1 S.C.R. 253 for the proposition that both knowledge
and control are essential elements to a finding of possession under s. 4(3) of
the
Criminal Code
,

R.S.C. 1985, c. C-46.

[13]

He
found that the respondent had control of the desktop computer.  It was his
property and he could have attached any conditions to its use had he been so
inclined.

[14]

With
respect to the statements made by the respondent at his home and at the police station
on the day of his arrest, the trial judge noted the respondents explanation
that the fact of his arrest had focused his mind on the nature of the charges
and that it was only after his arrest that he concluded that his suspicions
were probably well-founded.  The trial judge found that this explanation raised
a doubt on the issue of the respondents actual knowledge at the relevant time,
a doubt that he resolved in favour of the respondent.

[15]

However,
the trial judge also found that the respondent was at least suspicious that M.R.
had accessed and perhaps downloaded child pornography.  The trial judge referred
to the Supreme Courts definition of wilful blindness in
Sansregret v. The
Queen
, [1985] 1 S.C.R. 570 at p. 584.  The trial judge concluded that the
respondent had been wilfully blind as to the presence of child pornography on
his computer:

On these facts, I find that but for his relationship with his
partner, the [respondent] would and should have taken steps to make inquiries
of [M.R.] whether he had downloaded, or at least accessed, child pornography
and if so, to forthwith delete all such images and to cease and desist in such
activity in the future in the use by him of the computer of the [respondent].

[16]

Despite
finding both control and wilful blindness, the trial judge remained troubled
and went on to acquit the respondent on the basis of the doctrine of innocent
possession:

Taking the Crowns case at its highest, the [respondent]
condoned the use [M.R.] made of the computer and that included accessing child
pornography, an activity to which the [respondent] was wilfully blind.

[17]

The
trial judge cited the decision of this court in
R. v. Chalk
, 2007 ONCA
815,
88 O.R. (3d) 448, where Doherty J.A. confirmed the
existence of the innocent possession doctrine but held that it was not
available on the facts of that case.
The trial judge held that
Chalk
was distinguishable on its facts and concluded that the innocent
possession doctrine could and should be enlarged to apply to the respondents
conduct.

ISSUES

[18]

The
Crown submits that the trial judge erred by enlarging and applying the doctrine
of innocent possession.

[19]

The
respondent argues that while the trial judge may have used an inapt legal
description to describe his finding, he correctly found that the element of
control required to support a finding of possession was absent.

[20]

The
respondent further argues that the trial judge erred with respect to the legal
definition of wilful blindness and that the facts as found by the trial judge were
not sufficient to establish wilful blindness.

ANALYSIS

1.

Wilful
blindness

[21]

I
agree with the respondent that the trial judge erred in his articulation of the
legal test for wilful blindness.

[22]

In
R. v. Briscoe
,
2010 SCC 13,

[2010]
1 S.C.R. 411, the Supreme Court explained, at para. 21, that 
wilful
blindness imputes knowledge to an accused whose suspicion is aroused to the
point where he or she sees the need for further inquiries, but
deliberately
chooses
not to make those inquiries (emphasis in original). 
Writing for the court, Charron J. adopted Sopinka J.s statement in
R.
v. Jorgensen
, [1995] 4 S.C.R. 55, at para. 103: A finding
of wilful blindness involves an affirmative answer to the question: Did the
accused shut his eyes because he knew or strongly suspected that looking would
fix him with knowledge?
Briscoe
emphasizes the
need to keep the concepts of wilful blindness and recklessness distinct. 
As explained in
Sansregret
, at p. 584:

[W]hile recklessness involves knowledge of a
danger or risk and persistence in a course of conduct which creates a risk that
the prohibited result will occur, wilful blindness arises where a person who
has become aware of the need for some inquiry declines to make the inquiry

because he does not wish to know the truth.  He would
prefer to remain ignorant.

The culpability in recklessness
is justified by consciousness of the risk and by proceeding in the face of it,
while in wilful blindness it is justified by the accuseds fault in
deliberately
failing to inquire
when he knows there is reason for
inquiry.  [Emphasis added in
Briscoe
.]

[23]

Charron J. also cited with approval the
discussion of wilful blindness by two eminent criminal law scholars. Professor
Glanville Williams, in
Criminal Law: The General Part
, 2nd ed. (London: Stevens & Sons,1961), at p. 159, explained the
very limited scope of wilful blindness in the following way:

A court can properly find wilful blindness only
where it can almost be said that the defendant actually knew.  He
suspected the fact; he realised its probability; but
he refrained
from obtaining the final confirmation because he wanted in the event to be able
to deny knowledge.  This, and this alone, is wilful blindness.  It
requires in effect a finding that the defendant intended to cheat the
administration of justice.
Any wider definition would
make the doctrine of wilful blindness indistinguishable from the civil doctrine
of negligence in not obtaining knowledge.  [Emphasis added in
Briscoe
.]

[24]

Referring to Professor Don Stuarts
Canadian Criminal
Law: A Treatise
,
5th ed. (Toronto:
Carswell, 2007), at p. 241, Charron J. agreed, at para. 24, that deliberate
ignorance seems more descriptive than wilful blindness, as it connotes an
actual process of suppressing a suspicion.  Charron J. added that
[w]hile a failure to inquire may be evidence of recklessness or criminal
negligence wilful blindness is not simply a failure to inquire but, to repeat
Professor Stuarts words, deliberate ignorance.

[25]

In
R. v. Duncan
, 2013 ONCA 774, [2013]
O.J. No. 5838, this court considered language in a jury instruction to the
effect that wilful blindness could be established on the basis of evidence that
the accused knew child pornography could be accessed through Limewire or had a
suspicion that it could be. The court held that this language was too broad
and failed to deal with the level of suspicion required to engage the doctrine
of wilful blindness.

[26]

In my respectful view, the same error is revealed by the reasons of the
trial judge in the present case.  While he did cite
Sansregret
, he did not focus on the need to find that the respondent shut his
eyes because he knew or strongly suspected that looking would fix him with
knowledge or became aware of the need for some inquiry [yet] decline[d] to
make the inquiry

because he [did]
not wish to know the truth.  The trial judge was only prepared to find that
the respondent was 
at least suspicious that M.R. had accessed or
downloaded child pornography and that but for his relationship with M.R. he
would and should have made further inquiries.  In my view, while this might
support a finding of negligence or recklessness, it falls short of a situation
where it 
can almost be said that the defendant actually knew so
as to amount to wilful blindness.

[27]

A second and related point is that in finding
wilful blindness
in relation to the charge of
possession
of child pornography, the
trial judge based his finding in part on imputed knowledge that M.R.
accessed
child pornography
.  These two crimes are distinct.  As held by
the majority in
Morelli
,

at para. 31, evidence that a person
accessed child pornography on a computer does not establish the offence of possession
of child pornography.  There was no evidence that the non-pornographic images
of young males in underwear seen by the respondent were downloaded, and the
trial judge framed his finding on the respondents suspicion in terms of
whether [M.R.] had downloaded, or at least accessed, child pornography.  A
finding that the respondent was wilfully blind to the fact that M.R. had
accessed
child pornography does not amount to a finding that the respondent was wilfully
blind to the fact that M.R. had
downloaded
child pornography.  On the
authority of
Morelli
, downloading is required to support a finding of
possession.

[28]

I
conclude, accordingly, that the trial judge erred in law in finding that the
respondent had the requisite knowledge to support a conviction for possession
of child pornography.

2.

Innocent
possession

[29]

As explained in
Morelli
, at para. 15, both knowledge
and control are essential elements of possession.
I have already
considered the element of knowledge and turn now to the element of control and
to the Crowns submission that the trial judge erred in his application of the
doctrine of innocent possession.

[30]

Possession is defined in s. 4(3) of the
Criminal Code
in the following terms:

(a) a person has anything in possession when he has
it in his personal possession or knowingly

(i) has it in the actual possession or custody of
another person, or

(ii) has it in any place, whether or not that
place belongs to or is occupied by him, for the use or benefit of himself or of
another person; and


(b) where one of two or more persons,
with the knowledge and consent of the rest, has anything in his custody or possession,
it shall be deemed to be in the custody and possession of each and all of them.

[31]

The innocent possession doctrine relied on by the trial judge is
derived from cases where an accused does exercise control over contraband, but
with the absence of an intention to exercise control beyond that needed to
destroy the contraband or otherwise put it permanently beyond ones control:
Chalk
, at para.
24, citing
R. v. Christie
(1978), 41 C.C.C.
(2d) 282 (N.B.S.C. App. Div.).

[32]

I agree with the submission of the Crown that the respondent cannot
claim the benefit of the innocent possession doctrine.  Innocent possession
applies where an accused has a valid explanation for any control exercised over
contraband.  The respondent did not take control of the contraband to destroy
it or to remove it from his computer.

[33]

The question here is whether the respondent had control over the
contraband in the first place.  Although the innocent possession doctrine does
not apply, the innocent possession cases are relevant to this issue as they elucidate
what is meant by control.
Chalk
, at para. 23, includes
the following passage from
Christie
, at p. 287:

In my opinion, there can be circumstances which do not
constitute possession even where there is a right of control with knowledge of
the presence and character of the thing alleged to be possessed, where guilt
should not be inferred, as where it appears there is no intent to exercise
control over it.

[34]

Similarly, it was held in
R. v. York
, 2005
BCCA 74,
193 C.C.C. (3d) 331,
at
para. 20:

Personal possession is established where an accused person
exercises physical control over a prohibited object with full knowledge of its
character, however brief the physical contact may be, and where there
is
some evidence to show the accused person took custody of the object willingly
with intent to deal with it in some prohibited manner
. [Emphasis
added.]

[35]

I agree with the respondent that while the trial judge may have used an
inapt legal label or category, he did not err in finding that the Crown had
failed to establish the element of control required for possession.
As
the trial judge put it, taking the Crowns case at its highest, through his
failure to act, the respondent condoned the use [M.R.] made of the computer
and that included accessing child pornography.  In my view, that conduct falls
short of establishing a degree of control over the contraband sufficient to
ground criminal liability for possession.

[36]

As the owner of the computer, the respondent may have had the right to
exercise control over its use.  However, he did not consent, within the
meaning of s. 4(3)(b) of the
Criminal Code
, to
have child pornography downloaded on his computer.  He condoned M.R. having
free access to and use of his computer but he did not condone, agree or give
permission to M.R. to use the computer to download child pornography.  Nor did
he did do anything that could amount to taking custody of the contraband with
the intent to use or deal with it.

[37]

In
Chalk
, the accused was arrested on an unrelated charge and called his
girlfriend to instruct her to delete files containing child pornography stored
on a shared computer.  The Crown relies on the italicized words in the
following passage from
Chalk
, at para. 26, where this court rejected
the application of the innocent possession doctrine:

On the trial judge's findings, the appellant did not have
possession of the child pornography strictly for the purposes of destroying
that pornography. He knew that the pornography was on the computer's hard drive
for several months. During that time, he regularly used the computer
and
had control over the pornography in the sense that he could have deleted it
from the computer at any time had he chosen to do so
. On his own admission,
he ultimately decided to delete the pornography because he feared that the
police would discover it when they examined his computer. In those
circumstances, the appellant's instruction to delete the material was a
manifestation of his longstanding power or authority over the material. That
control had existed for several months and was not merely incidental to an
innocent purpose. [Emphasis added.]

[38]

I
am unable to accept the submission that the italicized words answer the issue
posed in this case.  As is clear from reading this passage as a whole, the
evidence that the accused in
Chalk
asked his girlfriend to delete the
contraband could not be viewed in isolation.  Rather than being evidence of an
innocent purpose, his instruction was a manifestation of his longstanding
power or authority over the material.

[39]

In
my view, to accept the Crowns argument that the respondent had control over the
child pornography by virtue of his ownership, especially when combined with a
finding of imputed intention, would unduly stretch the limits of criminal
liability.  To convict the respondent of a serious criminal offence that
entails a minimum period of incarceration simply because he suspected his
partner might have been using his computer to access and perhaps download child
pornography would not correspond to his limited level of moral culpability.

[40]

Although
there are flaws in the trial judges legal analysis, his assessment of the case
was essentially sound.  He was rightly troubled by the prospect of convicting
the respondent of this offence, and the respondent was properly acquitted of
this charge.

[41]

I
recognize, of course, that child pornography poses a serious problem for our
society and that criminal sanctions must be imposed against those who involve
themselves in this deeply destructive and harmful activity.  However, we must
not lose sight of the basic principles of criminal law, and we should preserve
the criminal sanction for conduct that is truly criminal.  In this case, M.R.
has been convicted and sentenced for the crime of possession of child
pornography. On the facts as found by the trial judge, the respondent was not
sufficiently aware of or involved in the commission of that crime to warrant
conviction.

DISPOSITION

[42]

For
these reasons, I would dismiss the Crowns appeal.

Released: (RJS) NOV 20, 2014                                
Robert J. Sharpe J.A.

I agree C.W. Hourigan J.A.

I agree G. Pardu J.A.




