



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), (2.1), (2.2), (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    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22, 48; 2015, c. 13, s. 18.

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. B.G., 2019 ONCA 926

DATE: 20191126

DOCKET: C65181

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.G.

Appellant

Dano Sahulka, D. Lea Scardicchio and Efstathios
    Balopoulos, for the appellant

Michael Perlin, for the respondent

Heard: November 15, 2019

On appeal from the convictions
    entered by Justice Jon-Jo Douglas of the Ontario Court of Justice on December
    1, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of child pornography
    offences and offences associated with the sexual touching of the victim (his
    daughter) in relation to three series of photographs that were found on the
    Internet depicting his daughter and parts of her body in a manner that amounted
    to child pornography. He was sentenced to four years in custody. He appealed
    his conviction alone.

[2]

We dismissed his appeal from conviction, with
    reasons to follow. These are those reasons.

[3]

Upon searching the pornographic photographs
    found on the Internet for their exchangeable image file format data (EXIFF data),
    police discovered that the photographs were taken at the appellants residence,
    the appellants former partners residence, and two other locations accessible
    to the appellant. The appellant admitted to taking many of the innocent
    photographs of the victim that were found on the Internet, but denied taking
    the more egregious pornographic ones, and denied that he willfully distributed
    any of the photographs. He suggested that the victims mother and new boyfriend
    also had an opportunity to commit the offences.

[4]

The trial judge rejected the appellants
    evidence. He accepted that the appellant did not have an exclusive opportunity
    to take the photographs. However, he reasoned that the appellants contention
    that he had not taken all the photos depended on an improbable series of events
    being true: the innocent photos he admitted having taken having somehow being
    hacked from among the thousands of photos on his system before he deleted them
    becoming intermingled with a series of pornographic images of the same victim,
    taken in the same timeframe, by someone else who had access to the victim, his
    residence, the mothers residence, and the aquatic centre he frequented with
    the victim. Applying
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000, he concluded that the circumstances were consistent with the appellant
    having committed the offences, and there [were] no other reasonable,
    alternative inferences that either support the innocence of the [appellant], or
    more importantly, raise a reasonable doubt.

[5]

On appeal, the appellant advanced two arguments.

[6]

First, he argued that the trial judge took
    improper judicial notice of the EXIFF data contained within the photographs to
    conclude that the photographs had not been cropped. He testified that he did not
    crop the photographs. He argues that, if some of the photographs were cropped, it
    suggests that the photos might have been taken by someone else.

[7]

We reject this argument. The trial judge did not
    err in rejecting the appellants trial counsels submission that some of the
    photos were cropped. There was no evidence that the photos had been cropped.
    With respect to the EXIFF data, the trial judge simply noted that it suggests
    support for Police Constable Redgates tentative view that there was no
    cropping of the original iPhone pictures in issue. Moreover, even if the photos
    were cropped, there was no evidence, and it was not argued, that only the
    person who takes a photograph can crop it.

[8]

Second, the appellant submits that the only
    concrete, relevant evidence in this almost exclusively circumstantial case was
    that the left adult-male hand that held the victims underwear aside in order
    to take a picture of the victims vagina that appeared in two of the sexually
    explicit photos had a mole on it, and the appellant did not have a mole on his
    left hand. A reasonable inference was that the adult with a mole on his hand,
    and not the appellant, took all the photos. The appellant submits that the
    trial judge erred by treating the evidence of the mole as neutral, and, in
    the result, erred in his application of
Villaroman
.

[9]

We reject this argument. The evidence on whether
    the appellant had a mole or spot on his hand at the time of the offences was
    equivocal.

[10]

Officer Power testified about the left adult-male
    hand depicted in the two photographs and indicated she saw a dark spot she
    believed to be a mole. She also observed that some photos from the appellants
    Facebook page depicted what she believed to be the appellants hand bearing the
    same mole. However, when she interviewed him, she did not see the dark mark.
    Rather, she observed a white mark on his hand in roughly the same location as
    the mole in the pictures. She explained that in her experience as a victim
    identification officer, marks on hands can change. Dark moles can lose
    pigmentation and become white.

[11]

The appellant accepted in cross-examination that
    one of the photos from his Facebook page depicted his hand and showed a mole on
    his hand. He also testified that the hand depicted in another photo from his
    Facebook account was not his, because mine does not have a mole. However, in
    his police statement, the appellant had admitted that that photo depicted his
    hand.

[12]

The trial judge considered the Facebook
    photographs of the appellants hand and the hand that appeared in the two
    sexually explicit photos. He noted that the appellants answers were quite
    contradictory.  He concluded that, based on the photos, he was not able to
    form any sort of opinion as to similarity. Further, he concluded it would be
    inappropriate to allow in the evidence of the police officer as to finger
    similarity.  Accordingly, he placed no reliance on any similarity that may or
    may not exist either to support a finding that the hand was that of the
    appellant or of someone else.

[13]

The assessment of what the photographs showed
    was a question of fact for the trial judge. It was open to him to find that the
    evidence was not sufficiently cogent to support any conclusion on identity.
    There is no basis to interfere with his conclusion.

[14]

Accordingly, the appeal was dismissed.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


