



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. M.N., 2017 ONCA 434

DATE: 20170531

DOCKET: 57189

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.N.

Appellant

Heather Pringle, for the appellant

Michelle Campbell, for the respondent

Heard: April 27, 2017

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated May 14, 2013, dismissing an appeal from
    the conviction entered on September 4, 2009, by Justice J. Rhys Morgan of the
    Ontario Court of Justice.

Weiler J.A.:


A.

Overview

[1]

The appellant, M.N., was convicted of possession of child pornography pursuant
    to s. 163.1(4) of the
Criminal Code
, R.S.C. 1985, c. C-46. The images
    were stored in the temporary Internet files on a computer he shared with his
    common law spouse. The couples teenaged daughter also occasionally used the
    computer when she visited her parents.

[2]

In convicting the appellant, the trial judge misapprehended the evidence
    of the Crowns expert witness as to how images can appear in a computers
    temporary Internet files, or cache. This misapprehension led him to reject
    the appellants evidence that he was unaware of the presence of child
    pornography on the computer and conclude that the appellant had downloaded the
    images. The trial judge therefore determined the appellant had the requisite
    knowledge and control of the images and entered a conviction for possession of
    child pornography.

[3]

The appellant appealed to the summary conviction appeal court. The
    summary conviction appeal judge similarly misapprehended the expert evidence
    and dismissed the appeal.

[4]

The appellant, although having served his sentence of six months
    imprisonment, seeks leave to appeal to this court and, if leave be granted,
    asks that this court set aside his conviction and enter an acquittal.

[5]

The respondent Crown consents to leave to appeal being granted on the
    basis of the misapprehension of the experts evidence, but does not agree that this
    court should enter an acquittal. The respondent makes two arguments. First,
    accessing child pornography is an offence included in the offence of
    possession. The appeal should therefore be dismissed under s. 686(1)(b)(i) of
    the
Code

because the appellant was properly convicted on
    another count or part of the indictment. Second, and in the alternative, the
    respondent submits that it is in the interests of justice to amend the
    information pursuant to s. 683(1)(g) of the
Code
to accord with the
    evidence on which the trial judge based his finding that the appellant accessed
    child pornography.

[6]

For the reasons that follow, I would agree that leave to appeal should
    be granted. I would hold that accessing child pornography is not intrinsically
    included in the offence of possession of child pornography. I would also not
    give effect to the respondents argument that the information should be amended
    to substitute a charge of accessing child pornography. To do so would prejudice
    the appellant and would therefore not be in accordance with the interests of
    justice.

[7]

Accordingly, I would grant leave to appeal, allow the appeal, and enter
    an acquittal for the offence of possession of child pornography.

B.

Proceedings Below

(1)

Trial in the Ontario Court of Justice

[8]

At the appellants trial, he testified that his common law spouse, B.S.,
    discovered images depicting child pornography on her computer (which they shared).
    She showed him what she had found, and they decided to call the police. The
    police came the same day  February 4, 2007  and found 55 images of child
    pornography in the temporary Internet files folder on the computer. Although
    the appellant freely admitted that he possessed adult pornography, he denied
    any knowledge of the images of child pornography on the computer. He also said
    if he downloaded any images of child pornography, it was unintentional and he
    must have been drunk at the time.

[9]

R.N., the daughter of M.N. and B.S., was 14 years old at the time the
    child pornography was discovered. She did not live with her parents, but she testified
    she occasionally used their computer when she visited, including to sometimes
    access adult pornography. On one occasion, she used the computer to access an
    adult pornography site and a child pornography site popped up. She shut down the
    computer without downloading the pornography. At the appellants trial, on May
    28, 2009, she testified that this incident had occurred a couple of years ago.

[10]

The Crown had called Michael Ryder as a witness. Ryder is a civilian
    designated as a special constable in the Electronic Crimes section of the
    Ontario Provincial Police. Ryder had conducted a forensic analysis of B.S.s
    computer and had prepared a report. The trial judge qualified Ryder to give
    opinion evidence with respect to forensic computer analysis.

[11]

Ryder testified that temporary Internet files are created when a person
    uses a web browser, like Internet Explorer, and these files are automatically
    saved as cached files. In addition, two files on the computer were found on
    Google Desktop, an application that also caches websites that might be
    revisited.

[12]

The essential elements of possession of child pornography are knowledge
    and control. These elements are common to both personal possession and
    constructive possession:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 15.

[13]

The trial judge found the appellant had knowledge of the child
    pornography. The trial judge rejected the appellants evidence that he did not
    know the images were on his computer. He found that the appellant had accessed
    the images over the Internet.

[14]

In regard to the second essential element, the exercise of control, the
    trial judge misapprehended Ryders evidence and concluded that the files could
    not have ended up in the computers temporary Internet folders without a
    deliberate act to download and save them there. On that basis, he inferred that
    the appellant had
downloaded
the child pornography, thereby exercising
    some control over the content stored in the temporary Internet files.

[15]

On September 4, 2009, the trial judge convicted the appellant of
    possession of child pornography. On October 22, 2009 the appellant was
    sentenced to six months imprisonment. He has since served that sentence.

(2)

Appeal to the Summary Conviction Appeal Court

[16]

The appellant appealed his conviction to the summary conviction appeal
    court and represented himself on appeal. Amongst other issues, he argued that
    the trial judge misapprehended Ryders evidence about how cached images get
    into computer memory.

[17]

The summary conviction appeal judge also misapprehended the evidence as
    to how images come to be saved in a temporary Internet cache. He found the evidence
    against the appellant substantiated the conviction for possession of child
    pornography and he accordingly dismissed the appeal.

C.

Issues

[18]

The issues raised on this appeal are:

1.   Should
    leave to appeal be granted?

2.   Is
    accessing child pornography a lesser included offence of possession of child
    pornography?

3.  
    If not, is it in the interests of justice to amend the information to charge
    the appellant with accessing child pornography and to enter a conviction for
    that offence?

D.

Analysis

(1)

Leave to appeal should be granted.

[19]

As discussed, the respondent consents to leave to appeal being granted
    and acknowledges there is insufficient forensic evidence to support a finding that
    the appellant had the necessary
mens rea
to possess child pornography. I
    agree.

[20]

The question of whether an accused person can be said to be in culpable
    possession of a cached visual depiction alone, while perhaps a live issue at
    the time of the appellants trial in 2009, was definitively answered by the
    Supreme Court of Canada in 2010. In
Morelli
,
referenced above, Fish J. held, at para 19:

[P]ossession of an image in a computer means
possession of
    the underlying data file,
not its mere visual depiction. [Emphasis in
    original.]

[21]

He explained, at para. 14:

In my view, merely viewing in a Web browser an image stored in
    a remote location on the Internet does not establish the level of control
    necessary to find possession. Possession of illegal images requires
possession of the underlying data files in some way.
Simply viewing images
    online constitutes the separate crime of
accessing
child pornography,
    created by Parliament in s. 163.1(4.1) of the
Criminal Code
. [Emphasis
    in original.]


[22]

Fish J. concluded, at para 31, Plainly, the mere fact that an image has
    been accessed by or displayed in a Web browser does not, without more,
    constitute possession of that image. At paras. 35-36, he considered how the
    Courts understanding of possession applied to files in an Internet cache as
    follows:

When accessing Web pages, most Internet browsers will store on
    the computers own hard drive a temporary copy of all or most of the files that
    comprise the Web page.  This is typically known as a caching function and the
    location of the temporary, automatic copies is known as the cache.

On my view of possession, the automatic caching of a file to
    the hard drive does not, without more, constitute possession.  While the cached
    file might be in a place over which the computer user has control, in order
    to establish possession, it is necessary to satisfy
mens rea
or fault
    requirements as well.  Thus it must be shown that the file was
knowingly
stored
    and retained through the cache. [Emphasis in original.]

[23]

After commenting that most computer users are unaware of the contents of
    their cache, how it operates, or even its existence, Fish J. held that absent
    that awareness, they lack the mental or fault element essential to a finding
    that they culpably possess the images in their cache:
Morelli
, at para.
    37.

[24]

Fish J. acknowledged that there could be rare instances where a person
    knowingly used the cache as a location to store copies of image files with the
intent

to retain possession of them through the cache
    (emphasis in original):
Morelli
, at para. 27. There is no evidence that
    this case is one of those rare instances. Thus, quite apart from the
    misapprehension of Ryders evidence, the existing jurisprudence would lead to
    the conclusion that the appellant was not guilty of possession of child
    pornography.

[25]

I would therefore agree that leave to appeal should be granted. Section
    839 of the
Code
provides for leave to appeal from a summary conviction
    to be taken on any ground that involves a question of law alone.

[26]

Justice Doherty elaborated on the requirements of s. 839 in
R. v.
    R.R.
, 2008 ONCA 497, 59 C.R. (6th) 258, in which he identified two key
    variables respecting the question of law raised: (1) the significance of the question
    of law to the general administration of criminal justice; and (2) the strength
    of the proposed appeal. The effect of these two variables is that leave may be
    granted in an arguable (although not strong) appeal where the issues have
    broader significance to the administration of justice. Similarly, leave may be
    granted where the merits appear very strong, even if the issues are not of
    general importance, especially if the conviction in issue is a serious one
    involving a significant deprivation of liberty:
R.R.
, at para. 37.

[27]

Both variables set out in
R.R.
support granting leave to appeal
    in this case. First, the question of law raised, namely, Is accessing child
    pornography an included offence for possession of child pornography? has
    significance to the administration of justice beyond the four corners of this
    case.

[28]

Second, the merits of the appellants appeal for possession of child
    pornography are very strong, having regard to: (a) the misapprehension of the
    experts evidence at trial,  (b) a similar misapprehension of that evidence on
    appeal to the summary conviction appeal court, as well as (c)  the Supreme
    Courts decision in
Morelli
.
In addition, not only is the
    conviction in issue a serious one that involves the risk of a significant
    deprivation of liberty, it carries a minimum sentence of imprisonment, and the
    appellant has already been deprived of his liberty for six months. It appears
    that a miscarriage of justice occurred. Further, the appellant continues to
    suffer the stigma associated with having to report under the
Sexual
    Offender Information Registration Act
,
    S.C. 2004, c. 10,
for a period of ten years.

[29]

For all of these reasons, I would grant leave to appeal.

(2)

Accessing child pornography is not intrinsically a lesser included
    offence of possession of child pornography.

[30]

The respondent submits that this court can substitute a conviction for
    accessing child pornography pursuant to s. 686(3) of the
Code

because
    accessing is a lesser included offence of possessing child pornography.

[31]

In
R v. R.(G.)
, 2005 SCC 45, [2005] 2 S.C.R. 371, at paras.
    25-34, the Supreme Court held that an offence is included in the offence
    charged in three instances:


i.

the offence is expressly stated as an included offence in the
Criminal
    Code
(s. 662);


ii.

the offences elements are embraced in the offence charged as described
    in the enactment creating it; or


iii.

the offences elements are embraced in the offence charged as described
    in the information or indictment.

The underlying principle is that the accused must have
    fair notice of the included offences he or she must meet:
R.
(G.)
,
    at para. 27.

[32]

Accessing child pornography is not stated as an included offence under
    s. 662(2) to (6) of the
Code
. The first instance cited above does not
    apply. Nor does the information describe accessing as part of the manner in
    which the offence of possession was committed. The third instance does not
    apply.

[33]

With respect to the second instance, the enactment creating the offence charged
     possession of child pornography  is s. 163.1(4) of the
Code
. It
states that every person who
    possesses any child pornography is guilty of an indictable offence, or an
    offence punishable on summary conviction. The question is, therefore, whether the
    offence of accessing child pornography is embraced in the offence of
    possession.

[34]

Accessing is contained in s. 163.1(4.1) of the
Code
,

which
    similarly states that every person who accesses any child pornography is guilty
    of an indictable offence, or an offence punishable on summary conviction.
    Subsection (4.2) defines accessing:

For the purposes of subsection (4.1), a person accesses child
    pornography who knowingly causes child pornography to be viewed by, or
    transmitted to, himself or herself.

[35]

The first definition of the word transmit or transmitted in the Canadian
    Oxford Dictionary, 2d ed. (Toronto: Oxford University Press, 2004), at p. 1654,
    is pass or hand on; transfer.

[36]

The Crown submits that it is legally impossible to possess child pornography
    without at some point accessing it. I disagree.

[37]

For example, if someone downloaded child pornography onto a memory stick
    and gave that memory stick to the appellant, and the appellant knew the memory
    stick contained child pornography, the appellant would be in possession of
    child pornography. He would have knowledge of the contents of the memory stick
    and control over those contents; therefore the elements of possession would be
    satisfied. He would not be guilty of accessing child pornography because he has
    not viewed the images on the memory stick nor has he transmitted them to
    himself.

[38]

As the above example illustrates, it is possible to possess child pornography
    without accessing it. The elements of the offence of accessing are not intrinsically
    embraced within the offence of possession.

[39]

My conclusion is also consistent with
Morelli
,
at para.
    27, where Fish J. observed that 
viewing
and possession [of child
    pornography] should  be kept conceptually separate. (emphasis added.)

[40]

I note further that the penalty for included offences is generally a
    lesser penalty in part because the moral culpability is less than for the
    original offence charged. The penalty for accessing child pornography and for
    possession of child pornography is identical. With respect to both, if found
    guilty pursuant to an indictment, the sentence is a minimum term of
    imprisonment of one year and a maximum term of ten years; if found guilty
    pursuant to summary conviction, the sentence is a minimum term of imprisonment of
    six months and a maximum of two years less a day. Thus, Parliament has
    indicated the moral culpability is the same.

(3)

It is not in the interests of justice to amend the information to charge
    the appellant with accessing child pornography and to enter a conviction for
    that offence.

[41]

I now turn to the Crowns secondary submission that this court should
    amend the information pursuant to s. 683(1)(g) of the
Code
so that it
    conforms to the trial judges finding that the appellant viewed child
    pornography. Section 683(1)(g) states:

For the purposes of an appeal under
    this Part, the court of appeal may, where it considers it in the interests of
    justice,



(g) amend the indictment, unless it
    is of the opinion that the accused has been misled or prejudiced in his defence
    or appeal.

[42]

By analogy, this court may also amend an information:
R. v. Brownson
,
    2013 ONCA 619, 7 C.R. (7th) 327, at para. 20.

[43]

I do not consider it to be in the interests of justice to amend the
    information and enter a conviction for accessing child pornography. Even if,
    based on the manner in which the case was presented, the appellant would have
    appreciated that accessing child pornography was a live issue at his trial, the
    trial judges misapprehension of the evidence was central to his rejection of
    the appellants credibility. Indeed, in its factum, the respondent concedes,

[The trial judges and the summary conviction appeal judges]
    misapprehension [of the evidence] impacted the finding at trial, upheld on
    appeal, that the Appellant had the necessary
mens rea

for the
    offence of possession of child pornography pursuant to s. 163.1(4) of the
Criminal
    Code
.

[44]

It is impossible to measure the extent to which the trial judges
    misapprehension of the evidence affected his assessment of the appellants credibility
    concerning his
mens rea
.

Suffice
    it to say, that misapprehension was central to the trial judges reasoning. The
    appellant would be severely prejudiced if this court were to substitute a
    conviction for accessing child pornography for the count of possession in this
    case.

[45]

In oral submissions, the respondent submitted that if this Court was
    concerned about substituting a conviction for accessing child pornography, it
    should consider amending the information and ordering a new trial.  In my
    opinion, this would not cure the prejudice to the appellant created by amending
    the information for the first time on appeal.

[46]

The time that has passed between the appellants trial in January 2009
    and this second appeal, heard in April 2017, and the additional expense and
    effort the defence would need to incur to defend such a charge, together with
    the fact that the appellant has already served his sentence for possession of child
    pornography, exacerbates the prejudice to the appellant. It would not be in the
    interests of justice for further proceedings to ensue.

E.

Disposition

[47]

Accordingly, I would grant leave to appeal, set aside the conviction for
    child pornography and enter an acquittal.

Released: K.M. May 31, 2017

Karen M. Weiler J.A.

I agree. K. Feldman J.A.

I agree. Grant Huscroft J.A.


