



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gauthier, 2021 ONCA 216

DATE: 20210409

DOCKET: C67340

Lauwers, Huscroft and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garrett Gauthier

Appellant

Megan Savard and Wesley Dutcher-Walls,
    for the appellant

Molly Flanagan, for the respondent

Heard: September 22, 2020 by video conference

On appeal from the conviction entered on
    April 24, 2019, by Justice Wayne G. Rabley of the Ontario Court of Justice, and
    from the sentence imposed on August 28, 2019, with reasons reported at 2019
    ONCJ 626.

Harvison Young J.A.:

[1]

Garrett Gauthier was charged with accessing,
    possessing, making available, and making child pornography. He was convicted on
    all four counts. He appeals his convictions on several grounds, including that
    the trial judge misapprehended potentially exculpatory evidence related to
    Skype syncing. He also seeks leave to appeal his sentence.

A.

Background

[2]

The appellant came to the attention of police
    when they received a tip from the National Center for Missing & Exploited
    Children (NCMEC), stating that an image of child pornography had been uploaded
    to Skype from his IP address by an account called dave.j.dunham on January
    30, 2017. The police traced the IP address to Mr. Gauthiers home. They
    searched the home and seized Mr. Gauthiers phone and laptop. They found 18
    images on his laptop and 121 images and 3 videos on his phone. The police also
    found records of graphic Skype chats which formed the basis of the making child
    pornography charge. There was no dispute that the materials, including the chat
    messages, were child pornography. The issue at trial was identity: did the
    Crown prove that the appellant put the material on his devices?

[3]

The case against the appellant was
    circumstantial. The appellant lives with his partner, and at least one other
    person had lived with them in the few years prior to the charges. Neither his
    computer nor his cell phone were password protected. The evidence for the Crown
    rested on a post-arrest interview with the appellant; the evidence of Det.
    Sandor Illes, an internet child exploitation investigator with the Waterloo
    Regional Police Service; and the evidence of Det. Allison Laing, a retired
    computer forensic examiner with the Waterloo Regional Police Service. Det.
    Laing was qualified as an expert, although, due to certain procedural
    irregularities discussed below, the basis for her qualification and the scope
    of her expertise was confused.

[4]

At trial, the Crown sought to prove that only
    the appellant could have been responsible for the dave.j.dunham Skype activity
    and that the appellant possessed the contraband files on his devices. The
    defence attempted to raise a reasonable doubt by relying on evidence (a) that
    another person using a separate device could have been responsible for the
    evidence of illegal activity on the appellant's devices and (b) that the
    appellant was unlikely to have engaged in the illegal  activity due to his
    presence in public places or proximity to other people at the time it occurred.
    To highlight the absence of exclusive opportunity, counsel pointed to the
    possibility of someone else's involvement but did not bring a formal
    third-party suspect application.

[5]

The specific grounds of appeal raised by the
    appellant are based on two underlying and related arguments. The first is that
    as a case about the possession and creation of digital contraband, much of the
    evidence was complex and highly technical, describing subjects like the
    automatic sending and syncing of media files, the ability of a Skype user to
    sync data across devices, the probative value of a routers MAC address,
    falsifiability, and more. Some of this evidence was inadmissible to begin with
    and had the effect of obscuring gaps in the Crowns offer of proof.

[6]

Second, the trial judge made a premature finding
    that the appellant had the exclusive opportunity to commit the offences, which
    drove his reasoning throughout the rest of his analysis. He was driven to this
    by his error in applying the third-party suspect test, which, as both parties
    agree, had not been argued. This, in the appellants view, effectively reversed
    the burden of proof. Having concluded at an early juncture that the appellant
    had an exclusive opportunity to commit the offences, the trial judge failed to
    fairly assess the appellants denial. Rather, the evidence about the
    appellants whereabouts and the absence of exclusive opportunity should have
    been part of the totality of the evidence the trial judge considered in his decision
    on whether the Crowns offer of proof on each charge precluded any reasonable
    innocent explanation:
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000. Instead, he was left with no alternative but to reject or minimize
    evidence that was inconsistent with the inference of guilt he had already
    drawn.

[7]

The respondent submits that the trial judge
    understood the Skype syncing evidence and properly rejected the argument that
    the syncing could have been remotely effected. The respondent also submits
    that, while the case for the Crown was circumstantial, the only real issue was
    whether the appellant was the user of the Skype dave.j.dunham account found
    on his cell phone and laptop, and the evidence supporting this was
    overwhelming. This evidence included the fact that dave.j.dunhams chat records
    included a number of biographical details that were consistent with the
    appellant. In addition, Dunham was Mr. Gauthiers mothers maiden name. The
    evidence of the expert was properly admitted and within her scope and
    expertise. The trial judge did not reverse the burden of proof or misapprehend
    the evidence. Even if there were errors, the circumstantial case was so
    overwhelming that the convictions should stand.

[8]

For the following reasons, I would allow the
    appeal and order a new trial with respect to the accessing, making available, and
    making counts, and an acquittal with respect to the possession count. I will
    address the grounds of appeal in turn.

B.

The decision below

[9]

After giving a brief overview of the facts, the
    trial judge discussed the legal principles involved. He directed himself on the
    principles set out in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. In addition,
    he stated that the defence had submitted that an alternative suspect, a former
    roommate could have committed the offences. As a result, he determined that
    the test for a third-party suspect in
R. v. Grandinetti
, 2005 SCC 5,
    [2005] 1 S.C.R. 27, and
R. v. Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, applied.
    He did not discuss the
Villaroman
case in his reasons.

[10]

The trial judge summarized the defence as
    resting upon the following five pillars:

1.

The appellant did not have exclusive opportunity
    to access, possess or distribute the child pornography on the two devices;

2.

The emails that he provided as exhibits could
    only have been produced at his place of employment and therefore establish that
    he was at work and not at home on January 30;

3.

The cell phone records provide evidence that he
    was in his office making calls and therefore not at home on January 30;

4.

He was in public settings when the majority of
    the other downloads were made and therefore could not and would not have been
    using his cell phone or laptop during those times; and

5.

He is a credible witness who should be believed
    or at least his evidence should raise a reasonable doubt.

[11]

After rejecting each pillar of the defence, the
    trial judge concluded that the Crown had proven its case beyond a reasonable
    doubt:

Given the evidence
    presented by the Crown and in particular the testimony of Detectives Laing and
    Illes, I find that the Crown has proven beyond a reasonable doubt that Garrett
    Gauthier is one and the same person as david.j.dunham. Even though this is a
    circumstantial case, I cannot come to any other [rational] conclusion other
    than that Mr. Gauthier committed these offences.

C.

Issues on appeal

[12]

The appellant raises four arguments on his
    conviction appeal which I will consider in turn:

1.

The trial judge relied on inadmissible evidence from the Crowns
    expert about the functioning of Skype technology, or alternatively, failed to
    properly consider and limit the scope of her evidence;

2.

The trial judge applied the wrong legal test and reversed the burden
    of proof;

3.

The trial judge misapprehended the evidence of identity and
    opportunity; and

4.

The trial judges verdict on the possession charge was unreasonable.

[13]

On his appeal of his four-year concurrent
    sentences on the possessing and making available counts, the appellant submits
    that the trial judge committed errors in principle and that the resulting
    sentences were disproportionate, harsh, and excessive.

D.

Analysis

(1)

Inadmissible evidence on the functioning of
    Skype technology

[14]

According to the appellant, the trial judge
    erred in admitting Det. Laings evidence as an expert witness, because she was
    insufficiently independent of the investigation and because key parts of her
    evidence exceeded the scope of her expertise. This second error was compounded
    by a failure to define and or limit the scope of her evidence to her expertise,
    which set the groundwork for further errors in the approach to and
    consideration of the evidence at trial.

[15]

The respondent, on the other hand, takes the
    position that Det. Laings evidence was properly admitted and that the trial
    judge did not err in reversing his earlier ruling that she was not sufficiently
    independent of the investigation. There was no issue with the scope of Det.
    Laings evidence; rather it was well understood. She was permitted to give both
    expert opinion evidence and technical fact evidence based on her specialized
    knowledge in the area of computer examination, data analysis, computer and
    cell phone forensic analysis and data retrieval. Moreover, the Crown submits,
    her evidence was within the scope of this specialized knowledge and expertise.
    To the extent she provided evidence about the operation of Skype, this evidence
    was largely elicited by the defence and benefited the appellant.

[16]

The trial began with a
voir dire
on the
    qualifications of the Crowns expert, Det. Laing. The Crown initially sought to
    qualify her as an expert to provide evidence
relative
    to computer examination, data analysis, computer, and cell phone forensic
    analysis and data retrieval
. The defence challenged her qualifications on
    the basis that she was not sufficiently independent. During submissions, the
    Crown argued that Det. Laings testimony was essential to prove the
mens
    rea
of the charged offences.

[17]

On the charges before the court, that meant
    that the Crown had to prove that Mr. Gauthier knowingly uploaded the files (making
    available), that he knew the files were on his devices (possessing), that he knowingly
    viewed or transmitted child pornography to himself (accessing), and that he
    personally wrote the chat messages (making).

[18]

After hearing Det. Laings testimony on the
voir
    dire
and the parties argument, the trial judge issued a ruling
    disqualifying her because she was not sufficiently independent to testify as an
    expert. However, his ruling was based on a misapprehension of the facts
    surrounding her contact with Det. Illes and the investigative team. The trial
    judge based his independence conclusion on the finding that Det. Laing had
    discussed the investigation with Det. Illes and seen his work product and
    conclusion that the appellant was dave.j.dunham in May 2017 before she
    completed her initial forensic report. However, these discussions took place in
    May 2018, well after she had completed her initial forensic report.

[19]

After this ruling, the Crown advanced an
    alternative argument for the admissibility of her testimony: that Det. Laing
    was a lay witness with specialized knowledge of forensic computer analysis.

[20]

On the third day of trial, the trial judge
    reversed his ruling disqualifying Det. Laing due to his misapprehension of the
    facts. After this ruling, the Crown said it sought to elicit only specialized
    knowledge lay evidence, not expert opinion. The trial judge did not indicate
    whether he was permitting Det. Laing to give expert opinion or lay evidence
    based on special knowledge. Nor did he delineate the scope of the matters about
    which she could testify. In short, the basis upon which her evidence was
    admitted was never clarified.

[21]

On appeal, the appellant argues both that Det.
    Laing should not have been permitted to testify at all either because she was
    not sufficiently independent or because, in any event, critical parts of her
    evidence (particularly in relation to Skype) were beyond the scope of her
    expertise and specialized knowledge.

(i)

The principles

[22]

An experts independence and impartiality goes
    to both admissibility and weight:
White Burgess Langille Inman v. Abbott
    and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45. There
    is a two-step test to determining the admissibility of expert opinion evidence:
White Burgess
, at paras. 22-24. The first step involves an inquiry
    into whether the evidence meets the threshold requirements for admissibility:
White
    Burgess
, at para. 23;
R. v. Abbey
, 2017 ONCA 640, 140 O.R. (3d)
    40, at para. 48. The second step is a gatekeeping step, where the judge must
    balance the potential risks and benefits of admitting the evidence:
White
    Burgess
, at para. 24.

[23]

An expert witness owes a duty to the court to be
    fair, objective and non-partisan:
White Burgess
, at para. 46. In order
    to meet the threshold requirement, the expert must be able and willing to carry
    out her duty to the court. The threshold requirement is not particularly
    onerous and it will likely be quite rare that a proposed experts evidence
    would be ruled inadmissible for failing to meet it:
White Burgess
, at
    para. 49. Concerns about an experts independence and impartiality are also
    relevant at the gatekeeping stage:
White Burgess
, at para. 54.

[24]

A trial judges gatekeeping role, however, does
    not end when the admissibility inquiry is over. It is critical for a trial
    judge to be alive to the continuing gatekeeper role throughout the trial and to
    be conscious of what is and is not evidence properly before the court:
R.
    v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 722, at para. 46. As part of the
    ongoing gatekeeper role, the trial judge must ensure that an experts testimony
    stays within the proper bounds of his or her expertise:
Sekhon
, at
    para. 47.

(ii)

Application to the case

[25]

I would reject the appellants argument that the
    trial judge should not have permitted Det. Laing to testify because she did not
    meet the independence requirement. The trial judge had made a simple error and
    once the error was brought to his attention, he stated that this was
    determinative of his opinion and reversed his ruling. He was entitled to do so.
    That decision was justifiable on the evidence and there is no reason to
    interfere with it on appeal.

[26]

A problem, however, arose from the trial judges
    failure to delineate and to monitor the scope of her testimony, and
    particularly, her evidence on remote syncing and Skype as it emerged in the
    course of her testimony.

[27]

In cross-examination, Det. Laing was asked
    technical questions about the operation of Skype. When asked about specific
    Skype settings on the appellants computer, she admitted that she was not an
    expert in Skype. Later in the cross-examination, she was asked about the
    nature of Skype syncing:

Q.      The
    possibility of individual A being able to engage in Skype activity on his or
    her computer; individual B, whos also synched to that same Skype account may
    not know what individual A is doing, if individual Bs computer is not on. And
    the witness had indicated thats possible.



[I]f my individual B
    a month later, two months later logs onto the computer and goes on to Windows
    and Im going on the basis that the box is ticked that Skype automatically
    comes up, all the content of As Skype communications will be picked up on Bs
    computer, wont it?

A.      So if youre, if
    youre asking me whether once B then logs on to their account and its
    connected to the server and it syncs, then yes.

[28]

Defence counsel then asked, if individual A
    uploaded a photograph to Skype that synced onto individual Bs device, whether
    the image would have appeared to have been uploaded from individual Bs device
    as well:

Q.      Okay.
    And let me ask you this, if, if an image had been sent, lets stay with that
    scenario, A had uploaded an image from the Skype account to another location,
    would it appear that the image had been uploaded from both devices? Do we see
    uploading, because theyre both synced, would it appear that theyve both been
    uploaded or uploaded from both devices?

A.      I dont
    know.

[29]

Det. Laing then articulated an untested theory
    about how the data would appear on each device:

A.      Im, Im having 
    wouldnt have tested this, but I would think there would be a file path where youre
    acquiring this from each device that would help identify where its coming
    from, but I dont know.

Det. Laings evidence on the
    possibility of remote syncing and the different file paths is discussed in more
    detail on the misapprehension of evidence issue.

[30]

The Crowns position is that Det. Laing was
    giving evidence within her expertise because she was giving evidence about the
    forensic analysis and data retrieval and not about Skypes functioning. With
    respect, given the fact that the heart of the defence was that the appellant
    had not personally uploaded any contraband or operated the dave.j.dunham
    account during the material times, the issue of remote uploading and syncing
    across devices with the same Skype account was a live issue. As the Crown notes,
    the syncing function was key to the appellants defence. The very general basis
    for Det. Laings expertise  computer examination, data analysis, computer and
    cell phone forensic analysis and data retrieval  says nothing about social
    media platforms and, in particular, Skype. Det. Laing, by her own admission,
    was not an expert in Skype.

[31]

I would allow this ground of appeal. While the
    trial judge did not err in declining to exclude Det. Laings evidence on the
    basis that she lacked independence, he erred in failing to limit the scope of her
    evidence in relation to Skype. In the circumstances of this case, I am unable
    to conclude that the case against the appellant was so overwhelming that
    conviction was inevitable in the absence of this evidence. Although that
    disposes of the appeal, I will address the other grounds because they were
    fully argued before us in the course of the appeal.

(2)

Exclusive opportunity and burden of proof

[32]

A core component of the defence at trial was
    that someone else was responsible for the illegal activity. This person had
    access to the appellants devices, which were not password protected, at some
    point in the past and logged on to the dave.j.dunham Skype account during this
    time. As a result, the photos and videos were synced onto the appellants
    devices via

Skype. The implication of this defence is that the person
    responsible for the illegal upload on January 30 would not have had to be in
    the appellants home and on his laptop to effect the upload.

[33]

After setting out the
W.(D.)
test early
    in his reasons, the trial judge went on to say that an alternative suspect,
    Mr. Collins, who had been a roommate of Mr. Gauthier and his partner, was a
    person who could have committed the offences. He stated that:

In order for a
    court to consider a third party suspect there must be a sufficient connection
    between the third party and the crime. As stated by Karakatsanis J. in R. v.
    Grant, 2015 SCC 9 at para 24, evidence that this third person had the motive,
    the means, or the propensity to commit the crime will often establish this
    sufficient connection.

[34]

The trial judge then stated that there must be
    an air of reality to trigger the consideration of whether or not the offences
    were committed by a third party, citing
Grandinetti
.

[35]

It is common ground that the trial judge
    mistakenly referred to the
Grandinetti
test when the
Villaroman
analytical framework applies. The Crown, however, argues that this was of no
    moment because the trial judge actually applied the
Villaroman
test.

[36]

The defence sought to raise a doubt by
    identifying reasonable inferences inconsistent with guilt and evidence capable
    of undermining the Crowns claim of exclusive opportunity. In making the
    argument, the defence emphasized its position that there was a reasonable
    possibility that Mr. Collins or others were implicated in the illegal activity.
    The defence did not suggest that Mr. Collins had a motive or propensity to
    commit the crime. It was understood that counsel was not advancing a
    third-party suspect defence.

[37]

On appeal, the appellant argues that applying
    the
Grandinetti
framework effectively reversed the burden of proof
    because applying the
Grandinetti
test limited, from the outset of the
    analysis, the range of potentially innocent explanations for the evidence of
    illegal activity on the appellants devices, while the
Villaroman
test
    precludes conviction on circumstantial evidence if there is another reasonable
    explanation inconsistent with guilt. This court has allowed appeals from
    conviction in cases where the trial judge has misunderstood the approach to
    circumstantial evidence and implicitly required the defendant to explain what
    happened. This is reinforced by the trial judges statement in the course of
    his explanation for rejecting the appellants evidence:

I appreciate that
    the Defence bears no onus to prove the innocence of Mr. Gauthier and that the
    onus of proof always rests with the Crown, but in my view, much of this
    evidence was problematic for the reasons I have set out and I find that it did
    not exonerate Mr. Gauthier as suggested by the Defence.

[38]

The respondent submits that, when the reasons
    are read as a whole, the trial judge did apply the
Villaroman
framework. Deference is owed to the trial judges conclusion that there is no
    reasonable alternative inference to guilt. The trial judges reference to the
    third-party suspect test is of no moment and, if it was an error, it was a
    harmless one. Although he cited the
Grandinetti
air of reality test
    at the outset, the trial judge did not mention it again in his reasons. He
    considered all of the evidence, including the defence evidence, and eventually
    found that the only rational conclusion was that the appellant committed the
    offence. Although his use of the word exonerate is not perfect, when the
    reasons are read as a whole, it is clear that the trial judge properly applied
    the burden of proof. The trial judge concluded his analysis with the statement
    that he found that the Crown has established beyond a reasonable doubt that
    neither Mr. Collins, Mr. Alexander nor a person unknown were operating the
    account david.j.dunham Skype account. By process of elimination, that leaves
    only Mr. Gauthier.

(i)

The principles

[39]

A trial judges reasons are to be read as a
    whole and should not be microscopically examined or dissected:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37;
R. v. C.L.Y.
, 2008 SCC 2,
    [2008] 1 S.C.R. 5, at para. 11. That said, it is not enough to cite the correct
    rules if they are not given substantive effect: see e.g.
R. v. Smith
,
    2020 ONCA 782, at para. 16.

[40]

It is trite to say that the presumption of
    innocence and the duty of the Crown to prove guilt beyond a reasonable doubt form
    the golden thread of criminal law:
R. v. Oakes
, [1986] 1 S.C.R. 103,
    at p. 120. One consequence of the principle of proof beyond a reasonable doubt
    is that, in cases resting upon circumstantial evidence, the trier of fact
    should consider other reasonable inferences inconsistent with guilt:
Villaroman
,
    at para. 37. This is because of the danger that a trier of fact may fill in the
    blanks or bridge gaps in the evidence to support the inference that the Crown
    invites it to draw:
Villaroman
, at para. 26.

(ii)

Application to the case

[41]

The starting point of the trial judges reasons
    was the
Grandinetti
air of reality test, which effectively required
    the defence to show that a particular identifiable person (Mr. Collins) had a
    sufficiently strong connection to the offences to meet the air of reality test
    and justify serious consideration. This set the stage for the risk of an
    improper shifting of the burden of proof to the accused because, once the trial
    judge concluded that Mr. Collins could not have committed the offences, that
    left the appellant as the remaining possible perpetrator. The defence evidence
    was considered against this backdrop.

[42]

In considering Mr. Gauthiers defence that he
    did not have an exclusive opportunity to commit the offences, the trial judge
    commented that the complex criminal case could be seen very simply:

When one looks
    objectively at all of the evidence, logically there can be only three people
    who could possibly have accessed, possessed and distributed the child
    pornography on Mr. Gauthiers cell phone and laptop. They are Khary Alexander,
    Stephen Collins and Garrett Gauthier.

[43]

All parties agreed that Mr. Alexander, Mr.
    Gauthiers partner, could not have committed the offences for reasons that are
    not pertinent to this appeal, except to say that the trial judge properly
    considered the evidence on the point and agreed. This left only Mr. Collins as
    a potential third party.

[44]

Mr. Gauthier testified that Mr. Collins had
    unrestricted access to his laptop which was not password protected, and that
    his roommates used his laptop.

[45]

The trial judge then turned to consider whether
    the person responsible for the child pornography found on the appellants
    devices was Mr. Collins or Mr. Gauthier. Mr. Gauthiers evidence was that Mr.
    Collins had been a roommate between October 2014 until December 2016. The trial
    judge found that the dave.j.dunham account had been created in order to
    disguise the identity of the real user. Given that Dunham was Mr. Gauthiers
    mothers maiden name and few people would have known that, it was logical to conclude
    that Mr. Gauthier created it.

[46]

Moreover, the account was created on May 25,
    2012, over two years before Mr. Collins began living with Mr. Alexander and the
    appellant. The chat records in evidence for the dave.j.dunham account dated
    back to November 2, 2015. The appellant had a Skype account that was set up in
    his own name in April 2010. This account had last been logged on to on November
    28, 2015. There was approximately one month of overlap in the use of the two
    accounts.

[47]

By January 30, 2017, Mr. Collins had moved out
    and was apparently living in Newfoundland. The trial judge concluded that Mr.
    Collins could not have been at the appellants home at the time of the upload.

[48]

The trial judge also rejected Mr. Gauthiers
    evidence that on a number of occasions, which coincided with times that
    pictures and videos were created, downloaded, uploaded, or accessed on his devices,
    he was in public places or involved in doing other things such that he could
    not have engaged in these activities, observing that:

In every venue  we
    witness people on their phones. It is not uncommon for these individuals to be
    communicating with a variety of others and reaching out or staying connected.
    Therefore, to suggest that Mr. Gauthier may not have been briefly engaged on
    his phone because he was at a restaurant or a social get together does not
    recognize the way we now live.

[49]

The trial judge found that had Mr. Collins been
    the one to set up the dave.j.dunham account, he would have discovered the Skype
    account that was still being used by Mr. Gauthier. Moreover, the trial judge
    expressed the view that it defied common sense to believe that Mr. Gauthier, an
    engineer, would not have noticed this earlier. That left Mr. Gauthier as the
    sole person who could have committed the offences.

[50]

The trial judges approach reflects a failure to
    clearly apply
Villaroman
. His reference to the of test from
Grandinetti
risked shifting the burden of proof. At the same time, the trial judge was well
    aware that the Crown had to prove its case beyond a reasonable doubt. He
    correctly articulated the three steps of
W.(D.)
and applied those
    steps. He rejected the appellants evidence, finding it inconsistent and
    self-serving. He stated, after dismissing the five pillars of the defence,
    that the evidence as a whole did not leave him with a reasonable doubt. There
    was, as the Crown argues, significant circumstantial evidence implicating the
    appellant. Nevertheless, setting out the
Grandinetti
third party
    suspect framework at the outset set the stage for an unfair assessment of the
Villaroman
test which appeared to place an unfair burden on the appellant. This concern
    was exacerbated by the trial judges comment that the evidence did not
    exonerate the appellant.

[51]

The narrow question is whether, against such a
    backdrop, the failure to clearly apply
Villaroman
in these
    circumstances is a fatal error that requires a new trial. The respondent submits
    that given the circumstantial evidence in this case, this court should apply the
    curative
proviso
. This would
    not be appropriate in this case because the error was compounded by
    misapprehension of the evidence, to which I now turn.

(3)

Misapprehension of the evidence

(i)

The principles

[52]

The principles governing the misapprehension of
    evidence are well known and articulated in
R. v. Morrissey
(1995), 97
    C.C.C. (3d) 193 (Ont. C.A.) and adopted in
R. v. Lohrer
, 2004 SCC 80,
    [2004] 3 S.C.R. 732.

[53]

In
Morrissey
, at p. 221, Doherty J.A.
    wrote that a misapprehension of evidence will result in a miscarriage of
    justice when the misapprehension relates to the substance of material parts of
    the evidence and the errors play an essential part in the reasoning process:

When will a misapprehension of the evidence
    render a trial unfair and result in a miscarriage of justice? The nature and
    extent of the misapprehension and its significance to the trial judge's verdict
    must be considered in light of the fundamental requirement that a verdict must
    be based exclusively on the evidence adduced at trial. Where a trial judge is
    mistaken as to the substance of material parts of the evidence and those errors
    play an essential part in the reasoning process resulting in a conviction, then,
    in my view, the accused's conviction is not based exclusively on the evidence
    and is not a "true" verdict. Convictions resting on a misapprehension
    of the substance of the evidence adduced at trial sit on no firmer foundation
    than those based on information derived from sources extraneous to the trial.
    If an appellant can demonstrate that the conviction depends on a
    misapprehension of the evidence then, in my view, it must follow that the
    appellant has not received a fair trial, and was the victim of a miscarriage of
    justice. This is so even if the evidence, as actually adduced at trial, was
    capable of supporting a conviction.

[54]

In
Lohrer
, at para. 2, Binnie J.
    affirmed
Morrissey
and stated that the misapprehension must go to the
    substance, rather than the detail, of the evidence and that the error must play
    an essential part in not just the narrative of the judgment but in the
    reasoning process resulting in a conviction.

(ii)

Application to the case

[55]

The trial judge committed one central
    misapprehension of the evidence before him. He assumed that the upload on
    January 30 had to have happened from the appellants home. Part of the basis
    for rejecting Mr. Collins as the possible operator of the account was that Mr.
    Collins had moved to Newfoundland, and the trial judge stated that it was
    absurd to suggest that Mr. Collins was the perpetrator:

In my view, it is beyond credulity to suggest
    that Mr. Collins returned from Newfoundland without telling Mr. Gauthier or Mr.
    Alexander and then entered into their home when they were not there and without
    their permission, to access the Skype account and download child pornography
    onto the laptop. That simply defies logic.

I should make a finding that Stephen Collins was not there that day
. If he was not, he could not have been the individual who was using
    the dave.j.dunham account on earlier occasions. [Emphasis added.]

[56]

Having rejected the possibility that there might
    have been other persons involved, this made the appellants version of events
    (such as his position that he was at work or in social situations at times when
    the dave.j.dunham account was chatting or when child pornography was accessed)
    presumptively suspect. The trial judge rejected the appellants evidence on
    this issue and found that it did not raise a reasonable doubt. The trial judge
    dismissed this possibility as far-fetched, noting that it was impossible to
    believe that a computer-savvy engineer such as the appellant would not have
    noticed that his Skype application had effectively been used by someone else
    for a few years.

[57]

The appellant argues that the trial judge
    misapprehended the evidence on this point. The evidence elicited by both the
    Crown and the defence was that information on Skype could be synced across
    devices. The trial judges assumption that the January 30 upload originated
    from the appellants home disregarded this evidence. This caused him to
    overlook a reasonable innocent explanation for the inculpatory evidence on the
    appellants devices.

[58]

The Crown argues that the trial judges finding
    that the upload happened at Mr. Gauthiers home was supported by the evidence. For
    example, the Crown states that someone must have logged in to Skype on the
    appellants computer in the appellants home on January 30 for the images to
    have synced. In addition, the Crown argues that evidence related to IP and MAC
    addresses supports the trial judges finding.

[59]

However, it is not clear from Det. Laings
    testimony that this evidence supports the inference that the January 30 upload
    happened in the appellants home. First, the Skype settings do not suggest that
    someone had to have been at the appellants computer on January 30. As Det.
    Laing testified, Skype technology syncs across devices. However, all that is
    required is that Skype be open and logged in. Nothing in Det. Laings testimony
    on the Skype settings, including the fact that Skype was not set to start upon
    start-up, suggests that someone had to open and log in to Skype on January 30.
    Second, Det. Laings evidence related to the IP address and MAC address
    associated with the laptop only suggests that the laptop was at the appellants
    home and connected to the internet on January 30. This evidence does not say
    anything about whether the January 30 upload originated from the appellants
    laptop or whether it originated from another device.

[60]

The only evidence on the record that would
    support the conclusion that the upload happened from the appellants home was
    the NCMEC tip and Det. Laings evidence that there would be different file
    paths that would enable her to identify which device an upload originated from.

[61]

The NCMEC tip cannot be relied on as evidence in
    this case. First, it was hearsay and there was no argument at trial that it
    should be admitted on the basis of any exception to the hearsay rule or the
    principled exception. Second, there was no evidence, aside from Det. Laings,
    about whether Skype or NCMEC would be able to differentiate between the
    original upload and a remotely synced download. This is not something that
    could form the basis of judicial notice, particularly during this period of
    rapidly developing and highly complex computer technology.

[62]

Det. Laings evidence on this point was
    equivocal and confusing and given her admitted lack of expertise on Skype syncing
    as discussed above, inadmissible. She began her answer with the statement that
    she had not tested this theory, but that she thought that there would be
    different file paths that would allow her to identify where an upload
    originated. The fact that even Det. Laing was unsure about this subject
    underlines the extent to which this area is beyond the ken of fact finders. By
    disregarding (without discussing) the possibility of remote access by someone
    who had access to the appellants devices some time ago, it is not clear that
    the trial judge understood that this could have been a technical possibility.

(iii)

Conclusion on misapprehension of evidence

[63]

The trial judge made a number of findings that
    allowed him to conclude that the appellant was the operator of the dave.j.dunham
    Skype account. He found that the dave.j.dunham Skype account was created on the
    appellants laptop, and not on some other device. He drew this inference
    because the corresponding email address (dave.j.dunham@gmail.com), which was
    not used for any purpose other than to create the dave.j.dunham Skype account,
    was logged in on the appellants computer. He found it illogical to suggest
    that someone would have logged in to that email account on the appellants
    computer some time after the creation of the Skype account. He also found that
    there was powerful circumstantial evidence that the appellant was the operator
    of the dave.j.dunham Skype account, including that a number of biographical
    details that dave.j.dunham had discussed in Skype chats also described the appellant.
    It is possible that the sum total of this evidence would have enabled a trier
    of fact to draw the inference that the appellant was the operator of the dave.j.dunham
    Skype account.

[64]

However, the trial judges unstated assumption
    that the January 30 upload originated in the appellants home was not supported
    by any admissible evidence at trial and was a misapprehension of the evidence.
    This assumption played an essential part in his train of reasoning. It was one
    of the reasons that the trial judge concluded that Mr. Collins could not have
    committed the offences. Having so concluded, the trial judge viewed the
    appellants potentially exculpatory evidence with a great deal of skepticism. As
    a result, there was a miscarriage of justice.

(4)

Unreasonable verdict on the possession count

[65]

The appellant argues that the conviction for
    possession was unreasonable on the evidence. All but two of the files
    containing child pornography were located in various cache folders on the
    appellants laptop and cell phone. According to the appellant, presence in
    cache folders is only enough to establish accessing, not possession.

[66]

The final two files were found on the
    appellants laptop in a folder titled My Skypes received files. This folder
    is not a cache folder. The appellant argues that Det. Laings testimony on this
    folder was confused and contradictory and that her evidence strayed outside of
    her expertise.

[67]

The appellant argues that, because the trial
    judge never undertook an offence-by-offence analysis, it is unclear exactly what
    evidence he considered when he convicted on the possession charge. Absent
    admissible evidence from Det. Laing on the location of these two files, there
    is not enough evidence capable of supporting a conviction on possession.

[68]

The Crown concedes that the evidence with
    regards to all but two of the files does not establish possession. However, the
    conviction was supported by the evidence because Det. Laings evidence was that
    the two remaining images had to have been purposefully downloaded. In addition,
    the Crown states that possession of the written pornography in Skype chat logs
    is sufficient to ground a conviction for possession of child pornography.

[69]

A key question at trial was what, if anything,
    the user of Mr. Gauthiers devices would have had to do for the illicit images
    to end up in the My Skypes received files folder.
If
deliberate human action was required to accept a file transfer before it
    could end up in the folder, then Det. Laings evidence could support a finding
    that the appellant had deliberately taken possession of those images. However,
    Det. Laings testimony was confused on this point.

[70]

When asked, Det. Laing first testified that a
    user would have to do something to accept a download before a file would appear
    in the folder:

A.      In
    the, My Skypes received files, this is a default location that Skype has for
    file transfers and download, its the download location. The user can, in the
    settings for Skype, change where those files would be downloaded and saved.
    This is still set to the default location as, My Skype received files. When
    the file is, file transfer is accepted by the user, this is the directory the
    file is saved to by the computer.

Q.      All
    right, so when someone is in Skype, just describe for us whats happening in
    Skype with the user that, that results in these two particular images winding
    up in that received files sub-folder.

A.      The user has
    accepted a file transfer from another Skype user and its being downloaded into
    this location.

[71]

Later, in cross-examination, Det. Laing denied
    that accepted had any meaning in relation to file transfers:

Q.      You
    have indicated to us a number of different instances where what you can say is
    an image appears to have been accessed, thats as opposed to being accepted.

A.      Whats accepted mean in your.

Q.      Well,
    accepted as in  well, I dont know if the right term would be downloaded,
    saved, manners of that sort, I think Id seen the term accepted with respect to
    exchange of some images. I may be using the word wrong.

[Crown counsel]:   The file transfer youre
    talking about?

Q.      Or
    a file transfer. The term accepted, is that a term that, that has relevance in
    the world of file transfers from your standpoint?

A.      Not, Im not recognizing that, no.

[72]

Although her initial testimony suggests that a
    Skype user would have knowledge of the contents of the Skype received files
    folder, by virtue of the fact that a received file would have to be accepted,
    her later statement that accept had no meaning raises questions about what
    user action was required for documents to end up in the Skype folder. That, in
    turn, raises questions about whether a user would have knowledge of the
    contents of the folder or whether files could end up in the folder
    automatically, without the knowledge of the computer user. Det. Laings
    evidence on the mechanics of the Skype folder is even more questionable given
    that she, by her own admission, was not an expert in Skype technology.

[73]

Considered as a whole, her evidence does not clearly
    establish that the appellant deliberately accepted the files and therefore
    had the requisite knowledge to establish possession. Moreover, as I have
    already outlined, her evidence as to the functioning of Skype was inadmissible
    because she recognized that she did not know how it worked. Without this
    evidence, there was no evidence that the appellant knew that he had physical
    custody of the images. Knowledge of possession is an essential element of
    possession:
R. v.

Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at
    para. 16;
R. v. M.N.
, 2017 ONCA 434, at para. 37. There was no other
    evidence on the point.

[74]

I reject the Crowns argument that possession of
    the Skype chats would be enough to sustain the possession conviction. First, my
    conclusions on the other grounds of appeal apply to the Skype chats as well.
    Second, this theory of liability was not advanced at trial, nor was it
    specified on the information. The information stated that the possession charge
    was based on digital images and videos, not written material. I would not
    amend the information to include the written material in the possession count,
    as suggested by the Crown in oral argument. I am not persuaded that doing so at
    this stage would not occasion prejudice to the appellant.

(5)

The curative
proviso

[75]

The respondent argues that the evidence against
    the appellant was overwhelming and that this court should apply the proviso.

[76]

I disagree. While the circumstantial evidence
    may have appeared to be strong, it was not overwhelming. The heart of the defence
    was the argument that the contraband on the appellants devices could have been
    remotely transferred. Much of the expert evidence on that subject was
    inadmissible as it was beyond, on Det. Laings own admission, the scope of her expertise.
    Without Det. Laings evidence on key aspects of the technology, including
    whether the January 30 upload happened from the appellants home and how the
    files ended up on the devices (which was essential to the possession
    conviction), it cannot be said that
the case against the
    appellant was so overwhelming that conviction was inevitable
. Given the
    confusion around the third-party suspect
Grandinetti
test and the
    circumstantial evidence test in
Villaroman
, as well as the fact that,
    as set out above, the inadmissible evidence of Det. Laing played a significant
    role in the trial judges decision, I am unable to reach that conclusion. That
    said, it is possible that the circumstantial case could have given rise to a
    conviction in the absence of these errors. For that reason, I would allow the
    appeal and order a new trial with respect to the accessing, making available,
    and making child pornography counts. I would order that an acquittal be entered
    with respect to the possession count as there was no admissible evidence that
    the appellant knew that those images were on his devices.

E.

Disposition

[77]

For these reasons, I would allow the conviction
    appeal and order a new trial with respect to the accessing, making available,
    and making child pornography counts. I would order that an acquittal be entered
    with respect to the possession count. It is not necessary to consider the
    sentence appeal.

Released: April 9, 2021
P.L.

A. Harvison Young J.A.

P. Lauwers J.A.

Grant Huscroft J.A.


